SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
AMENDMENT NO. 1 TO FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES UNDER THE
TRUST INDENTURE ACT OF 1939
WORLD FINANCIAL PROPERTIES, L.P.
(Name of applicant)
One Liberty Plaza
New York, New York 10006
(Address of principal executive offices)
SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED
TITLE OF CLASS AMOUNT
Increasing Rate Convertible Up to $33,400,000*
Notes due 2004
Approximate date of proposed public offering: On or promptly
after the Effective Date (as defined in the Third Amended Joint
Plan of Reorganization of Olympia & York Realty Corp., et al.,
dated September 12, 1996).
World Financial Properties, L.P.
One Liberty Plaza
New York, New York 10006
(Name and address of agent for service)
with a copy to:
Richard J. Sabella, Esq.
Cahill Gordon & Reindel
Eighty Pine Street
New York, New York 10005
_________________________
* This is an approximate amount. The aggregate Face Amount
of the indenture securities will be equal to 5.71% of the
aggregate Maximum Allowable Amount of Allowed Unaffiliated
Unsecured Claims and Disputed Unaffiliated Unsecured
Claims (as defined in the Plan attached hereto as Exhibit
T3E.2), which Claims will continue to be determined and
adjusted up to the date of issuance of the indenture
securities.
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The obligor hereby amends this Application for Qualification on
such date or dates as may be necessary to delay its effective-
ness until (i) the 20th day after the filing of a further
amendment which specifically states that it shall supersede
this amendment, or (ii) such date as the Securities and
Exchange Commission (the "Commission"), acting pursuant to Sec-
tion 307(c) of the Trust Indenture Act of 1939, may determine
upon the written request of the obligor.
Exhibit Index Appears on Page 23
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GENERAL
1. General Information.
(a) Form of organization.
A limited partnership.
(b) State or other sovereign power under the laws of
which organized.
Delaware.
2. Securities Act exemption applicable. State briefly the
facts relied upon by the applicant as a basis for the
claim that registration of the indenture securities under
the Securities Act of 1933 is not required.
The Notes to be issued pursuant to the Indenture
to be qualified (the "Indenture") will be issued to
existing holders of Consolidated Devco Class 11
Allowed Unaffiliated Unsecured Claims against any of
the Consolidated Devco Entities, as defined in and
pursuant to the Third Amended Joint Plan of Reorgani-
zation of Olympia & York Realty Corp., et al.
(collectively, the "Debtors"), dated as of September
12, 1996 (the "Plan"), filed with the United States
Bankruptcy Court, Southern District of New York (the
"Bankruptcy Court"), in Chapter 11 Case Number 92 B
42698 (JLG) (jointly administered). In connection
with the reorganization of the Debtors, World Finan-
cial Properties, L.P. (the "Company") has been formed
as a Delaware limited partnership. The Debtors dis-
tributed their Disclosure Statement (the "Disclosure
Statement") relating to the Plan to holders of Con-
solidated Devco Class 11 Allowed Unaffiliated Unse-
cured Claims and other creditors of the Debtors. A
copy of the Disclosure Statement is filed with this
application as Exhibit T3E.1 and a copy of the Plan
is filed with this application as Exhibit T3E.2.
The Notes being offered and issued are exempt
from registration under the Securities Act of 1933,
as amended, pursuant to paragraph 62 of an order of
the Bankruptcy Court dated September 20, 1996 con-
firming the Plan (the "Confirmation Order") and
exempting the Notes from registration in accordance
with Section 1145 of Chapter 11 of Title 11 of the
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United States Code (the "Bankruptcy Code"). A copy
of the Confirmation Order is filed with this applica-
tion as Exhibit T3D.1. The Notes will be issued
shortly after the date on which, all conditions to
the effectiveness of the Plan having been satisfied
or waived, the Plan is consummated (the "Effective
Date").
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AFFILIATIONS
3. Affiliates. Furnish a list or diagram of all affiliates
of the applicant and indicate the respective percentages
of voting securities or other bases of control.
World Financial Properties GP Corp. is currently the
general partner of the Company, holding a 1% equity inter-
est in the Company. The Company currently has no other
affiliates.
As of the Effective Date, the affiliates of the Com-
pany will be as set forth below. The affiliates of the
Company which will be controlled directly or indirectly by
the Company will be organized immediately prior to the
Effective Date in connection with the transactions to be
consummated under the Plan.
Partners Limited: owns 66% of the outstanding voting
stock of The Edper Group Limited.
The Edper Group Limited: owns 48% of the outstanding vot-
ing stock of Hees International Bancorp Inc.
Hees International Bancorp Inc.: owns 100% of the out-
standing voting stock of National Bancorp Inc. and 50% of
the outstanding voting stock of Carena Holdings Corpora-
tion Limited.
National Bancorp Inc.: owns 50% of the outstanding voting
stock of Carena Holdings Corporation Limited.
Carena Holdings Corporation Limited: owns 49.85% of the
outstanding voting interests in Carena Holdings Inc.
Carena Holdings Inc.: owns 100% of the outstanding voting
stock of Carena Holdings Ltd.
Carena Holdings Ltd.: owns 100% of the outstanding voting
stock of Placement La Rondelle Ltd.
Placement La Rondelle Ltd: owns 85% of the outstanding
voting stock of Brookfield Properties Corporation.
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Brookfield Properties Corporation: owns 100% of the out-
standing voting stock of Carena Bancorp Equities Limited.
Carena Bancorp Equities Limited: owns 100% of the out-
standing voting stock of CAC [1974] Properties Limited.
CAC [1974] Properties Limited: owns 100% of the outstand-
ing voting stock of Carena Bancorp U.S. Inc.
Carena Bancorp U.S. Inc.: owns 100% of the outstanding
voting stock of Battery Park Holdings Inc.
Battery Park Holdings Inc.: owns (a) 65% of the equity
interest in WFP II Limited Partnership as a general part-
ner and (b) directly or indirectly approximately 45.54% of
the equity interests in the Company as a limited partner.
WFP II Limited Partnership: owns 75% of the outstanding
voting stock of World Financial Properties, Inc.
World Financial Properties, Inc. (formerly known as World
Financial Properties GP Corp.): owns 1% of the equity
interest in the Company as a general partner.
JMB 245 Park Avenue Holding Company, LLC: owns approxi-
mately 5.4949% of the equity interest in the Company as a
general partner.
WFP Property GP Corp.: a wholly owned subsidiary of the
Company.
WFP SF Holdings Corporation: a wholly owned subsidiary of
the Company.
WFP Florida Equity Corp.: a wholly owned subsidiary of
the Company.
Miami Center Joint Venture: a partnership in which WFP
Florida Equity Corp. holds 50% of the equity interests.
WFP 245 Park Co. G.P. Corp.: a wholly owned subsidiary of
WFP Property GP Corp.
New 245 Park LP: a limited partnership in which WFP 245
Park Co. G.P. Corp. holds 1% of the equity interests as
the sole general partner and the Company holds 99% of the
equity interests as the sole limited partner.
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WFP Tower A Co. G.P. Corp.: a wholly owned subsidiary of
WFP Property GP Corp.
Tower A Limited Partnership: a limited partnership in
which WFP Tower A Co. G.P. Corp. holds 1% of the equity
interests as a general partner.
New Tower A LP: a limited partnership in which WFP Tower
A Corp. holds 3.070707% of the equity interests as a gen-
eral partner and the Company holds 70.6666667% of the
equity interests as a limited partner.
WFP One Liberty Plaza Co. G.P. Corp.: a wholly owned sub-
sidiary of WFP Property GP Corp.
New Liberty Plaza LP: a limited partnership in which WFP
One Liberty Plaza Co. G.P. Corp. holds 1% of the equity
interests as a general partner and the Company holds 99%
of the equity interests as a limited partner.
WFP Pennland G.P. Corp.: a wholly owned subsidiary of WFP
Property GP Corp.
WFP Pennland Co. L.P.: a limited partnership in which WFP
Pennland G.P. Corp. holds 1% of the equity interests as a
general partner and the Company holds 99% of the equity
interests as a limited partner.
WFP Retailco Corp.: a wholly owned subsidiary of WFP
Property GP Corp.
WFP Retailco LP: a limited partnership in which WFP
Retailco Corp. holds 1% of the equity interests as a gen-
eral partner and the Company holds 99% of the equity
interests as a limited partner.
WFP 53 State Street Holding Co. LP: a limited partnership
in which the Company holds 99% of the equity interests as
a general partner.
WFP 53 State Street Co. Limited Partnership: a limited
partnership in which WFP 53 State Street Holding Co. LP
holds 49.75% of the equity interests as a general partner
and .25% of the equity interests as a limited partner.
WFP Tower D Holding I G.P. Corp.: a wholly owned subsid-
iary of WFP Property GP Corp.
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WFP Tower D Holding Co. I L.P.: a limited partnership in
which WFP Tower D Holding I G.P. Corp. holds 1% of the
equity interests as a general partner and the Company
holds 99% of the equity interests as a limited partner.
WFP Tower D Co. GP Corp.: a wholly owned subsidiary of
the Company.
WFP Tower D Co. L.P.: a limited partnership in which WFP
Tower D Co. G.P. Corp. holds 1% of the equity interests as
a general partner and New Tower D Holding Co. I L.P. holds
48% of the equity interests as a limited partner.
World Financial Properties Tower D Finance Corp.: a
wholly owned subsidiary of WFP Tower D Co. L.P.
WFP Tower D Holding II LP: a limited partnership in which
WFP Property GP Corp. holds 50.75% of the equity interests
as a general partner and the Company holds 49.25% of the
equity interests as a limited partner.
WFP Tower B Holding Co. L.P.: a limited partnership in
which the Company holds 1% of the equity interests as a
general partner and 98% of the equity interests as a lim-
ited partner and WFP Property GP Corp. holds 1% of the
equity interests as a general partner.
WFP Tower B GP Corp.: Battery Park Holdings Inc. holds
directly or indirectly 97% of the voting stock.
WFP Tower B Co. L.P.: a limited partnership in which WFP
Tower B GP Corp. holds 1% of the equity interests as a
general partner and WFP Tower B Holding Co. L.P. holds 99%
of the equity interests as a limited partner.
World Financial Properties Tower B Finance Corp.: a
wholly owned subsidiary of WFP Tower B Co. L.P.
WFP FCA Inc.: a wholly owned subsidiary of WFP Property
G.P. Corp.
See also Item 4 below -- "Directors and Executive
Officers."
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MANAGEMENT AND CONTROL
4. Directors and executive officers. List the names and com-
plete mailing addresses of all directors and executive
officers of the applicant and all persons chosen to become
directors or executive officers. Indicate all offices
with the applicant held or to be held by each person
named.
The business and affairs of the Company are currently
managed by World Financial Properties GP Corp. ("GP
Corp."), the Company's general partner. The table below
sets forth the names, mailing addresses and offices of the
individuals who currently serve as members of the Board of
Directors and/or executive officers of GP Corp.
Name Address Office
John Zuccotti World Financial Director and
Properties GP Corp. President
One Liberty Plaza
New York, NY 10006
Joseph Killi World Financial Director and
Properties GP Corp. Secretary
One Liberty Plaza
New York, NY 10006
Bruce Flatt c/o Brookfield Director
Properties Corporation
P.O. Box 770, Suite 440
BCE Place, 181 Bay St.
Toronto, Ontario
M5J 2T3
On or about the Effective Date, World Financial Prop-
erties GP Corp. will change its name to World Financial
Properties, Inc. and the business and affairs of the Com-
pany will be managed by World Financial Properties, Inc.
under the terms of the Company's governing amended and
restated agreement of limited partnership (the "Partner-
ship Agreement") (filed as Exhibit T3A.2 to this applica-
tion).
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The table below sets forth the names, mailing
addresses and offices of individuals who will serve as
members of the Board of Directors and/or executive offic-
ers of World Financial Properties, Inc. as of the Effec-
tive Date.*
Name Address Office
John Zuccotti ** Chairman of the
Board of Directors
Gordon Arnell ** Director
Joseph Killi ** Director
Bruce Flatt ** Director
Jack Cockwell ** Director
Patricia Goldstein ** Director
Anne M. Goodbody ** Director
Frank J. Sixt ** Director
Paul McFarlane ** Director
John Zuccotti President and Chief
Executive Officer
_________________________
* It is contemplated that there will be a total of ten directors on the
Board of Directors of World Financial Properties, Inc. after the
Effective Date. The tenth director, who will be an independent director,
will be selected by a majority of the Board of Directors.
** The mailing address of each of these individuals is c/o
World Financial Properties, Inc., One Liberty Plaza, New
York, New York 10006.
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Name Address Office
Thomas P. Falus ** Executive Vice
President (Leasing
and Development)
John A. Moore ** Executive Vice
President (Finance)
Lawrence F. Graham ** Senior Vice President
(Property Operations)
Edward F. Beisner ** Senior Vice President
(Administration &
Accounting)
Richard B. Clark ** Senior Vice President
(Leasing)
Robert Ross ** Treasurer
Edward F. Beisner Secretary
<PAGE>
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5. Principal owners of voting securities. Furnish the fol-
lowing information as to each person owning 10 percent or
more of the voting securities of the applicant.
The following table sets forth each person that cur-
rently owns 10 percent or more of the voting securities of
the Company.
Percentage of
Name and Complete Title of Amount Voting Securities
Mailing Address Class Owned Owned Owned
World Financial General sole general 1% of equity
Properties GP Corp. Partnership partnership interests in the
One Liberty Plaza Interest interest Company
New York, NY 10006
Battery Park Limited sole limited 99% of equity
Holdings Inc. Partnership partnership interests in the
One Liberty Plaza Interest interest Company
New York, NY 10006
The following table sets forth each person that will
own 10 percent or more of the voting securities of the
Company as of the Effective Date.
Percentage of
Name and Complete Title of Amount Voting Securities
Mailing Address Class Owned Owned Owned
World Financial General 1,000 Class A 1% of equity
Properties, Inc. Partnership Units as the interests in the
One Liberty Plaza Interest managing general Company
New York, NY 10006 partner
JMB 245 Park Avenue General Approximately Approximately
Holding Company, LLC Partnership 5,494.9 Class A 5.4949% of equity
900 North Michigan Interest Units as a interests in the
Avenue general partner Company
Chicago, Illinois 60611
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Battery Park Class A Approximately Approximately
Holdings Inc. Units 45,540 Class A 45.54% of equity
One Liberty Plaza Units as a interests in the
New York, NY 10006 limited partner Company
Canadian Imperial Class A Approximately Approximately
Bank of Commerce Units 20,790 Class A 20.79% of equity
425 Lexington Avenue Units as a interests in the
New York, NY 10017 limited partner Company
Emerald LP Holdings, Class A Approximately Approximately
Inc. Units 21,780 Class A 21.78% of equity
53 East 53rd Street Units as a interests in the
25th Floor limited partner Company
New York, NY 10022
The numbers and percentages listed above are approximate
and may be adjusted on the Effective Date in accordance
with the Plan. The persons listed above also own Class
B-1 Units and Class B-2 Units in the same percentages as
the Class A Units owned by them. The Class B-1 Units and
the Class B-2 Units will not have any voting or other
interest in the assets of the Company until they are
converted by the Company into Class A Units in the
manner and upon the terms and conditions set forth in
the Partnership Agreement following the occurrence of
certain events specified in the Partnership Agree-
ment.
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UNDERWRITERS
6. Underwriters. Give the name and complete mailing address
of (a) each person who, within three years prior to the
date of filing the application, acted as an underwriter of
any securities of the obligor which were outstanding on
the date of filing the application, and (b) each proposed
principal underwriter of the securities proposed to be
offered. As to each person specified in (a), give the
title of each class of securities underwritten.
(a) None.
(b) None. See Item 2 above.
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CAPITAL SECURITIES
7. Capitalization.
(a) Furnish the following information as to each autho-
rized class of securities of the applicant.
Set forth below is certain information with
respect to the partnership interests of the Company
which are currently outstanding:
Title of Class Amount Authorized Amount Outstanding
General Partnership 1% of equity all
Interest of the Company
Limited Partnership 99% of equity all
Interest of the Company
Set forth below is certain information with
respect to the partnership interests of the Company
which will be outstanding as of the Effective Date:
Title of Class Amount Authorized Amount Outstanding
Class A General Approximately 6,494.9 all
Partnership Interest Class A Units, each re-
presenting a .001% equity
interest in the Company
as a general partner
Class A Units Approximately 93,505.1 all
Units, each representing
a .001% equity interest
in the Company as a
limited partner
Class B-1 Units 100,000 Units all
Class B-2 Units 100,000 Units all
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(b) Give brief outline of the voting rights of each class
of voting securities referred to in paragraph (a)
above.
GP Corp., as the current holder of the general
partnership interest of the Company generally has the
exclusive right and power to manage and operate the
business of the Company. As of the Effective Date,
World Financial Properties, Inc. will be the managing
general partner of the Company and generally will
have the exclusive right and power to manage and
operate the business of the Company.
JMB 245 Park Avenue Holding Company, LLC, as a
general partner, and the limited partner holders of
Class A Units, Class B-1 Units and Class B-2 Units
generally have only the voting powers and rights set
forth under the Partnership Agreement and as other-
wise provided by Delaware law.
The Class B-1 Units and the Class B-2 Units will
not have any voting or other interest in the assets
of the Company until they are converted by the Com-
pany into Class A Units in the manner and upon the
terms and conditions set forth in the Partnership
Agreement following the occurrence of certain events
specified in the Partnership Agreement.
Under Section 11.01 of the Partnership Agree-
ment, the holders of Class A Units, by the vote of
holders of two-thirds of the then outstanding Class A
Units and all of the then existing Founding Limited
Partners (as defined in the Partnership Agreement),
have the power to make certain amendments to the
Partnership Agreement, provided that, without the
consent of each partner affected thereby, no such
amendment may (i) convert all or any part of a lim-
ited partner's interest into a general partner inter-
est, (ii) impose any personal liability on any lim-
ited partner or (iii) except as contemplated in the
Partnership Agreement, alter the equity interest of
any limited partner. In addition, without the writ-
ten consent of the Required Unrestricted Unitholders
(as defined in the Partnership Agreement), no amend-
ment to the Partnership Agreement may (x) impair cer-
tain rights of limited partners with respect to prof-
its, losses and distributions, (y) impair certain
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transfer rights of the limited partners or (z) alter
certain other rights of the limited partners. Cer-
tain other limitations on amendments to the Partner-
ship Agreement are set forth in Section 11.01 of the
Partnership Agreement.
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INDENTURE SECURITIES
8. Analysis of indenture provisions. Insert at this point
the analysis of indenture provisions required under
section 305(a)(2) of the Act.
The terms of the indenture securities include
those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"). The
following analysis of certain of the provisions of
the Indenture makes use of certain terms defined in
the Indenture. The following analysis does not pur-
port to be a complete description of the Indenture
provisions discussed and is qualified in its entirety
by express reference to the Indenture. (Section ref-
erences are to the relevant provisions of the
Indenture.)
A. Default Provisions
An "Event of Default" occurs under the Indenture
if: (1) the obligor defaults in the payment of
interest on any indenture securities when the same
becomes due and payable and such default continues
for a period of 10 days, or the obligor defaults in
the payment of the principal of or premium, if any,
on any indenture securities when the same becomes due
and payable at maturity, upon redemption, on the Spe-
cial Offer Payment Date (as defined in the Inden-
ture), by acceleration or otherwise; (2) the obligor
fails to make or consummate any Special Offer (as
defined in the Indenture), as, when and to the extent
required by the provisions of Section 3.7 and Sec-
tions 4.9, 4.10 or 4.17 of the Indenture, as the case
may be; (3) the obligor fails to comply in any
respect with any of the provisions of Section 5.1 of
the Indenture; (4) any representation or warranty
contained in Article 12 of the Indenture shall be
untrue as of the Effective Date in any material
respect; (5) the obligor fails to comply with any
provision of Section 4.6, Section 4.7, Section 4.19
or Section 4.20 of the Indenture or in any material
respect with any other provision in the Indenture or
the indenture securities for a period of 30 days
after written notice from the indenture trustee or
holders of at least 25% of the indenture securities,
<PAGE>
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other than indenture securities held by the obligor
or an Affiliate (as defined in the Indenture) of the
obligor; (6) the obligor or any of its Significant
Subsidiaries (other than an Exempt Subsidiary)
defaults under any mortgage, indenture or instrument
which results in acceleration of a principal amount
of Indebtedness prior to its stated final maturity in
excess of $5,000,000; (7) there shall be judgments
against the obligor or any Significant Subsidiary
(other than an Exempt Subsidiary) rendered by a court
or other tribunal of competent jurisdiction in excess
of $5,000,000, and (a) such judgments are not stayed
or discharged within 60 days after entry and (b) an
enforcement proceeding shall have been commenced (and
not discharged, stayed or settled) by any creditor
upon any such judgments; (8) the obligor, a Control-
ling Partner (as defined in the Indenture) or any
Significant Subsidiary (other than an Exempt Subsid-
iary) (a) commences a voluntary case or proceeding
under any Bankruptcy Law (as defined in the Inden-
ture), (b) consents to the entry of an order for
relief against it in an involuntary case or proceed-
ing under any Bankruptcy Law, (c) consents to an
appointment of a Custodian (as defined in the Inden-
ture) of it or for all or substantially all of its
property, (d) makes a general assignment for the
benefit of its creditors, (e) admits in writing its
inability to pay its debts generally as they become
due, or (f) dissolves or is deemed dissolved as a
matter of law or contract (unless, in the case of a
partnership, the same is contemporaneously reconsti-
tuted pursuant to a provision in its partnership
agreement); (9) a court of competent jurisdiction
enters an order or decree under any Bankruptcy Law
with respect to the obligor, a Controlling Partner or
any Significant Subsidiary (other than an Exempt Sub-
sidiary) that (a) is for relief in an involuntary
case or proceeding, (b) appoints a Custodian for all
or a substantial part of its properties or (c) orders
its liquidation or dissolution, and in any such case
the order or decree remains unstayed and in effect
for 60 days; (10) default by the obligor in the con-
version of any indenture security in accordance with
the terms of the Indenture and the indenture securi-
ties, which default continues for three business days
after written notice thereof from any holder of an
indenture security to the obligor and the indenture
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trustee; (11) default in payment, when due and pay-
able, of any installment of principal or interest on
the TIAA Note (as defined in the Indenture) which
continues for three business days after written
notice from Teachers Insurance and Annuity Associa-
tion of America to the obligor and the indenture
trustee; (12) the obligor defaults under any mort-
gage, indenture or instrument which results in accel-
eration of Indebtedness that is subordinated in right
of payment to the indenture securities prior to its
stated final maturity; and (13) the opinion or the CP
Certificate (as defined in the Indenture) contem-
plated by Section 4.18 of the Indenture are not
delivered to the indenture trustee on the date of the
indenture. (Section 6.1)
If an Event of Default occurs and is continuing,
the indenture trustee or the holders of at least 25%
of the then outstanding principal amount of the
indenture securities (excluding any indenture secu-
rity then held by the obligor or an Affiliate of the
obligor) may, and the indenture trustee at the writ-
ten request of such holders shall, declare the unpaid
principal of, premium, if any, on and accrued inter-
est on the indenture securities immediately due and
payable, and may proceed to protect and enforce the
rights of the holders. (Section 6.2)
If a Default occurs and is continuing and if it
is known to the indenture trustee, the indenture
trustee must mail to each holder of the indenture
securities notice of the default within 30 days after
a Trust Officer (as defined in the Indenture)
receives written notice thereof stating that it is a
notice of "Default" and citing the applicable subsec-
tion of Section 6.1 of the Indenture and indentifying
the Indenture, unless such Default has been cured or
waived. The indenture trustee shall not be deemed to
have notice of any Default until a Trust Officer
shall have received written notice thereof expressly
referring to the Indenture and citing the applicable
subsection of Section 6.1 of the Indenture. The
immediately preceding sentence shall be in lieu of
the proviso to Section 315(b) of the Trust Indenture
Act and said proviso is expressly excluded from the
Indenture, as permitted by the Trust Indenture Act.
(Section 7.5)
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B. Authentication and Delivery of Indenture
Securities
An indenture security will not be valid until
the indenture trustee manually authenticates the
indenture security. The signature will be conclusive
evidence that the indenture security has been authen-
ticated under the Indenture. The indenture trustee
will authenticate securities for original issue in
the aggregate principal amount not to exceed approximately
$33,400,000, upon receipt of a written order of
the obligor signed by two officers of a Controlling
Partner and an Opinion of Counsel (as defined in the
Indenture) addressed to the indenture trustee and the
holders of the indenture securities in substantially
the form attached to the Indenture as Exhibit B. The
order shall specify the amount of indenture securi-
ties to be authenticated, the date on which the
indenture securities are to be authenticated, the
names, addresses and denominations in which the
indenture securities shall be registered and to whom
the indenture securities shall be delivered. The
aggregate principal amount of indenture securities
outstanding at any time may not exceed approximately
$33,400,000 except as provided in Section 2.7 of the
Indenture. (Section 2.2)
The indenture trustee may appoint an authenti-
cating agent acceptable to the obligor to authenti-
cate indenture securities. Unless limited by the
terms of such appointment, an authenticating agent
may authenticate indenture securities whenever the
indenture trustee may do so. An authenticating agent
has the same rights as an Agent (as defined in the
Indenture to deal with the obligor or an Affiliate of
the obligor. (Section 2.2)
The indenture securities will be issuable in
registered form without coupons in denominations of
$1,000 and any integral multiple thereof. (Section
2.1)
The indenture securities will be delivered as
soon as practicable after the execution of the Inden-
ture and the occurrence of the Effective Date. There
will be no proceeds to the obligor from the issuance
of the indenture securities. As described above in
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Item 2, the indenture securities will be issued pur-
suant to the Plan to holders of Consolidated Devco
Class 11 Allowed Unaffiliated Unsecured Claims
against the Consolidated Devco Entities in a princi-
pal amount equal to 5.71% of the aggregate allowed
amount of their claims.
C. Release or Substitution of Collateral
The obligations under the Indenture are not
secured by liens on or security interests in the
property of the obligor or any other person.
D. Satisfaction and Discharge of Indenture
Except for certain specified surviving obliga-
tions, the Indenture shall cease to be of further
effect when all indenture securities previously
authenticated and delivered (other than destroyed,
lost or stolen indenture securities which have been
replaced or paid) have been delivered to the inden-
ture trustee for cancellation or conversion and the
obligor has paid and delivered all sums payable or
deliverable, and issued all Class A Interests (as
defined in the Indenture) required to be issued, by
it under the Indenture. (Section 8.1)
The obligor's obligations under the Indenture
and the indenture securities are subject to rein-
statement in certain circumstances. (Section 8.6)
E. Evidence of Compliance with Conditions
and Covenants
Upon any request or application by the obligor
to the indenture trustee to take any action under the
Indenture, the obligor is required to furnish to the
indenture trustee (1) a CP Certificate stating that,
in the opinion of the signers, all conditions prece-
dent, if any, provided for in the Indenture relating
to the proposed action have been complied with and
(2) an Opinion of Counsel stating that, in the opin-
ion of such counsel, all such conditions precedent
have been complied with. (Section 10.4)
Each CP Certificate and Opinion of Counsel with
respect to compliance with a condition or covenant
<PAGE>
-21-
provided for in the Indenture must include: (a) a
statement that each Person (as defined in the Inden-
ture) or Persons making such CP Certificate or Opin-
ion of Counsel has read such covenant or condition;
(b) a brief statement as to the nature and scope of
the examination or investigation upon which the
statements or opinions contained in such CP Certifi-
cate or Opinion of Counsel are based; (c) a statement
that, in the opinion of such Person, he has made such
examination or investigation as is necessary to
enable such Person to express an informed opinion as
to whether or not such covenant or condition has been
complied with; and (d) a statement as to whether or
not, in the opinion of such Person, such condition or
covenant has been complied with; provided, however,
that with respect to matters of fact, an Opinion of
Counsel may rely on a CP Certificate or certificates
of public officials. (Section 10.5)
The obligor is required to notify the indenture
trustee and the holders of the indenture securities
as soon as possible after the obligor or a Control-
ling Partner becomes aware of the occurrence of any
event which is, or after notice or passage of time or
both would be, an Event of Default (a "Default"), or
Event of Default which is continuing. (Section 4.3)
The obligor is also required to deliver periodic cer-
tificates, reports and other information to the
indenture trustee and the holders of the indenture
securities, as follows:
(a) within 60 days after the end of each
fiscal quarter and within 120 days after the end
of each fiscal year of the obligor, a CP cer-
tificate stating whether or not the obligor or
any Controlling Partner knows or any Default or
Event of Default which occurred during such pre-
ceding fiscal period or occurred in any other
fiscal period and is continuing. Such certifi-
cate shall contain a certification from each
Controlling Partner as to its knowledge of the
obligor's compliance with all conditions and
covenants under the Indenture during such
preceding fiscal year and shall otherwise comply
with section 314(a)(4) of the Trust Indenture
Act. If a Controlling Partner knows of a
Default or Event of Default, the certificate
<PAGE>
-22-
must describe the Default or Event of Default
and its status; and (Section 4.3)
(b) so long as it is not contrary to the
then current recommendation of the American
Institute of Certified Public Accountants and so
long as the obligor's accountants provide simi-
lar statements to other companies, within 120
days after the end of each fiscal year of the
obligor a written statement by the obligor's
independent certified public accountants stating
(A) that their audit examination has included a
review of the terms of the Indenture and the
indenture securities as they relate to account-
ing matters, and (B) whether, in connection with
their audit examination, any Default has come to
their attention and if such a Default has come
to their attention, specifying the nature and
period of existence thereof; provided, however,
that such independent certified public accoun-
tants will not be liable by reason of any fail-
ure to obtain knowledge of any such Default or
Event of Default that would not be disclosed in
the course of an audit examination conducted in
accordance with GAAP (as defined in the Inden-
ture). (Section 4.3)
9. Other obligors. Give the name and complete mailing
address of any person, other than the applicant, who is
an obligor upon the indenture securities.
None.
<PAGE>
-23-
Contents of Amendment No. 1 to application for qualification.
This Amendment No. 1 to application for qualification
comprises --
(a) Pages numbered 1 to 25, consecutively.
(b) The statement of eligibility and qualifica-
tion of the trustee under the Indenture to
be qualified.*
(c) The following exhibits in addition to those
filed as a part of the statement of eligi-
bility and qualification of each trustee.
Exhibit
Exhibit T3A.1 Certificate of Limited Part-
nership of the Company, as
currently in effect.*
Exhibit T3A.2 Form of Amended and Restated
Agreement of Limited Partner-
ship of the Company antici-
pated to be in effect on the
Effective Date.
Exhibit T3A.3 Certificate of Incorporation
of GP Corp., as currently in
effect.*
Exhibit T3A.4 Form of Amended and Restated
Certificate of Incorporation
of the general partner of the
Company anticipated to be in
effect on the Effective Date.
Exhibit T3B.1 Bylaws of GP Corp., as cur-
rently in effect.*
Exhibit T3B.2 Form of Amended and Restated
Bylaws of the general partner
of the Company anticipated to
_________________________
* Previously filed.
<PAGE>
-24-
be in effect on the Effective
Date.
Exhibit T3C Form of Indenture, including
itemized table of contents.
Exhibit T3D.1 Confirmation Order of the
Bankruptcy Court entered Sep-
tember 20, 1996.*
Exhibit T3D.2 Findings of Fact of the Bank-
ruptcy Court dated Septem-
ber 20, 1996.*
Exhibit T3E.1 Disclosure Statement, dated as
of August 9, 1996, distributed
in connection with the Plan.*
Exhibit T3E.2 Third Amended Joint Plan of
Reorganization of the Debtors
dated September 12, 1996.*
Exhibit T3F Cross-reference sheet showing
the location in the Indenture
of the provisions inserted
therein pursuant to Sections
310 through 318(a), inclusive,
of the Act (included in
Exhibit T3C as the first page
following the cover page of
the Indenture).*
_________________________
* Previously filed.
<PAGE>
-25-
SIGNATURE
Pursuant to the requirements of the Trust Indenture
Act of 1939, the applicant, World Financial Properties, L.P., a
limited partnership organized and existing under the laws of
the State of Delaware, has duly caused this Amendment No. 1 to
application to be signed on its behalf by the undersigned,
thereunto duly authorized, and its seal to be hereunto affixed
and attested, all in the City of New York and State of New
York, on the 12th day of November, 1996.
WORLD FINANCIAL PROPERTIES,
L.P.
By: WORLD FINANCIAL PROPERTIES GP
CORP., its general partner
By: /s/ John Zuccotti
-----------------------------
Name: John Zuccotti
Title: President
ATTEST:
[SEAL]
/s/ Joseph Killi
- ------------------------------
Name: Joseph Killi
Title: Secretary of WORLD
FINANCIAL PROPERTIES
GP CORP.
=============================================================
AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP
of
WORLD FINANCIAL PROPERTIES, L.P.
Dated as of November 20, 1996
by and among
WORLD FINANCIAL PROPERTIES, INC.
JMB 245 PARK AVENUE HOLDING COMPANY, LLC
BATTERY PARK HOLDINGS INC.
OLYMPIA & YORK TOWER B COMPANY
CANADIAN IMPERIAL BANK OF COMMERCE
WFP HOLDINGS LIMITED PARTNERSHIP
EMERALD LP HOLDINGS, INC.
and the other Persons identified on
Schedule I as limited partners
=============================================================
<PAGE>
TABLE OF CONTENTS
Section Page
RECITALS
ARTICLE 1 - DEFINITIONS
ARTICLE 2 - CONTINUATION
2.01 Continuation ...................................... 13
2.02 Filing; Publication ............................... 13
2.03 Name .............................................. 14
2.04 Place of Business; Registered Agent ............... 14
2.05 Partners .......................................... 14
2.06 Implementing Transactions.......................... 15
ARTICLE 3 - BUSINESS PURPOSE
3.01 Character of Business ............................. 14
3.02 Authorized Activities ............................. 14
ARTICLE 4 - CAPITAL CONTRIBUTIONS
4.01 Initial Contributions ............................. 15
4.02 Additional Contributions .......................... 15
4.03 Rights of Holders of Class B Units; Cancel-
lation by Managing General
Partner ........................................ 18
4.04 Partners' Accounts ................................ 19
4.05 Transfers or Conversions During Year .............. 19
ARTICLE 5 - CONVERSION RIGHTS
5.01 Class B-1 Unit Conversion ......................... 20
5.02 Class B-2 Unit Conversion ......................... 21
5.03 Additional Conversion Adjustments ................. 22
5.04 Net SF Cash and Net MCJV Proceeds ................. 22
5.05 Convertible Note Documents ........................ 23
5.06 Transfers Pursuant to JMB Agreement ............... 23
ARTICLE 6 - PROFITS, LOSSES AND DISTRIBUTIONS
6.01 Profits and Losses ................................ 23
6.02 Allocations for Tax Purposes ...................... 24
6.03 Distributions ..................................... 25
-i-
<PAGE>
Page
ARTICLE 7 - MANAGEMENT AND FINANCING MATTERS
7.01 Management of Business ............................ 25
7.02 No Management by Limited Partners; Limita-
tion of Liability .............................. 27
7.03 Appointment of Agents, Officers or Repre-
sentatives ..................................... 28
7.04 Title to Property; Nominee ........................ 28
7.05 Time Devoted to Business; Business with
Related Persons ................................ 29
7.06 Fiduciary Duty; Exculpation ....................... 29
7.07 Indemnification ................................... 30
7.08 Book and Records at Principal Place of
Business ....................................... 31
7.09 Annual Audit and Accounting ....................... 32
7.10 Reports; Notices .................................. 32
7.11 Tax Matters ....................................... 33
7.12 Withholding of Certain Amounts .................... 35
ARTICLE 8 - COMPENSATION
8.01 No Entitlement to Compensation .................... 36
8.02 Reimbursement ..................................... 37
ARTICLE 9 - TRANSFERS
9.01 Certain Transfers Void ............................ 37
9.02 Certain Prohibitions on Transfers ................. 37
9.03 Transfer by Certain Partners ...................... 38
9.04 Approval of Managing General Partner .............. 38
9.05 Certain Prohibited Transfers ...................... 39
9.06 Successor Managing General Partner; Removal
of Managing General Partner .................... 40
9.07 Successor Partners ................................ 41
9.08 Tag-Along Provisions .............................. 42
9.09 Transfers Must Comply with Laws ................... 45
9.10 Assumption by Transferee .......................... 45
9.11 Remedies for Impermissible Transfer ............... 45
9.12 Certificates ...................................... 46
9.13 Mutilated, Destroyed, Lost or Stolen Unit
Certificates ................................... 46
9.14 Record Holders .................................... 47
9.15 Registration of Transfer of Class A
Units........................................... 47
-ii-
<PAGE>
Page
ARTICLE 10 - DISSOLUTION AND TERMINATION
10.01 Events of Dissolution ............................. 49
10.02 Continuance of the Partnership .................... 50
10.03 Liquidation of Partnership Assets ................. 50
10.04 Time for Winding-Up ............................... 52
ARTICLE 11 - GENERAL PROVISIONS
11.01 Entire Agreement .................................. 52
11.02 Appointment of Attorney or Agent .................. 54
11.03 Construction ...................................... 55
11.04 Governing Law ..................................... 55
11.05 Further Assurances ................................ 55
11.06 Titles and Captions ............................... 55
11.07 Binding Agreement ................................. 55
11.08 Waiver of Participation; Appraisal
Rights ......................................... 55
11.09 Counterparts and Effectiveness .................... 55
11.10 Waiver of Trial by Jury ........................... 56
Signatures .................................................... 57
SCHEDULE I Partners and Units
EXHIBIT A Form of Unit Certificate
EXHIBIT B Form of Transfer Application
-iii-
<PAGE>
AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP of WORLD
FINANCIAL PROPERTIES, L.P. (the "Partnership"), dated as of November 20, 1996,
by and among WORLD FINANCIAL PROPERTIES, INC., a Delaware corporation, as a
general partner, JMB 245 PARK AVENUE HOLDING COMPANY, LLC (together with its
successors and assigns, "JMB Partner"), as a general partner, and BATTERY PARK
HOLDINGS INC. (together with its successors and assigns, "BPHI"), OLYMPIA & YORK
TOWER B COMPANY (together with its successors and assigns, "OYTBC"; OYTBC,
together with BPHI, "BPHI Partner"), CANADIAN IMPERIAL BANK OF COMMERCE
(together with its successors and assigns, "CIBC Partner"), WFP HOLDINGS LIMITED
PARTNERSHIP (together with its successors and assigns, "Dragon Partner"),
EMERALD LP HOLDINGS, INC. (together with its successors and assigns, "Citibank
Partner"), and the other Persons (as hereinafter defined) identified on Schedule
I, as limited partners.
R E C I T A L S :
A. The Partnership was formed as a Delaware limited partnership
pursuant to the Original Partnership Agreement (as hereinafter defined) between
the Original Partners (as hereinafter defined).
B. In furtherance of the consummation of the transactions contemplated
in the Plan (as hereinafter defined), the parties hereto desire to admit the New
Partners (as hereinafter defined) and to amend and restate the provisions of the
Original Partnership Agreement.
A G R E E M E N T :
The parties hereto agree that the New Partners are hereby admitted to
the Partnership and the Original Partnership Agreement is hereby amended and
restated in its entirety as follows:
<PAGE>
-2-
ARTICLE 1 - DEFINITIONS
As used herein, the following terms have the meanings assigned to them
in this Article:
Act: The Delaware Revised Uniform Limited Partner-
ship Act, as amended from time to time.
Additional Equity Interests: Equity securities of the Partnership
issued after the date hereof pursuant to the provisions of Section 4.02;
provided, however, that the Convertible Notes shall not constitute
Additional Equity Interests for any purpose of this agreement.
Additional General Partner: JMB Partner, any Person admitted to the
Partnership as an Additional General Partner thereof (upon conversion of
all or part of its Interest as a Limited Partner or otherwise) pursuant to
the provisions of subsection 4.02(c) and any other Person that hereafter
becomes an Additional General Partner of the Partnership in accordance
with the provisions of Article 9 (other than Section 9.06), in each case
until such Additional General Partner shall cease to be a general partner
of the Partnership pursuant to the provisions of this agreement or
applicable law.
Adjusted Tag-Along Amount: In respect of the Unrestricted Units of
any Tag-Along Partner relating to a particular Tag-Along Sale, the product
of (i) the maximum number of Class A Units of such Tag-Along Partner
specified in such Tag Along Partner's Tag-Along Notice and (ii) a
fraction, the numerator of which is the actual percentage (which shall not
be less than the Original Sale Percentage in respect of such Tag-Along
Sale) of all then outstanding Class A Units (computed on a basis that
assumes all Convertible Notes (exclusive of any accrued interest in
respect thereof) have been converted to Class A Units) that the applicable
Tag-Along Purchaser has agreed to purchase in such Tag-Along Sale and the
denominator of which is the Original Sale Percentage in respect of such
Tag-Along Sale plus the aggregate of (A) the Tag-Along Sale Percentages of
each Tag-Along Partner in respect of such Tag-Along Sale and (B) if there
shall be any Convertible Notes then outstanding, the Tag-Along Sale
Percentages (as defined in the Convertible Note Indenture) of each holder
of Convertible Notes that has delivered a
<PAGE>
-3-
Tag-Along Notice (as defined in the Convertible Note Indenture) in respect
of such Tag-Along Sale.
Affiliate: With reference to any Person, any other
Person that "Controls," is "Controlled by" or is under
"common Control with" such Person.
Arm's-length Basis: As to any transaction, agreement
or other arrangement, being on terms that would be reached
by unrelated parties not under any compulsion to contract.
Available Funds: As defined in Section 6.03.
Bank of Nova Scotia Settlement: The compromise and settlement of
certain claims of The Bank of Nova Scotia to be effected in accordance
with section 4.9 of the Plan.
Bankruptcy: The "Bankruptcy" of a Person shall be
deemed to have occurred upon the happening of any of the
following:
(a) The valid appointment of a receiver or trustee to
administer all or a substantial portion of such Person's assets or
such Person's Interest (if any) in the Partnership;
(b) The filing by such Person of a voluntary petition for
relief under the Bankruptcy Code or of a pleading in any court of
record admitting in writing its inability to pay its debts as they
become due;
(c) The making by such Person of a general
assignment for the benefit of creditors;
(d) The filing by such Person of an answer admitting the
material allegations of, or its consenting to or defaulting in
answering, a petition for relief filed against it in any proceeding
under the Bankruptcy Code; or
(e) The entry of an order, judgment or decree of any court of
competent jurisdiction granting relief against such Person in a
proceeding under the Bankruptcy Code, and such order, judgment or
decree continuing unstayed and in effect for a period of thirty (30)
days after such entry.
<PAGE>
-4-
Bankruptcy Code: The Bankruptcy Reform Act of 1978,
as amended and as codified at title 11, United States
Code, as amended from time to time.
Bankruptcy Court: The United States District Court
for the Southern District of New York having jurisdiction
over the Reorganization Cases (as defined in the Plan).
Business Day: Any day other than a Saturday, a Sun- day or any other
day on which banking institutions in New York, New York, are required or
authorized to close by law or executive order.
Capital Contribution: As defined in Section 4.01.
Certificate: The Partnership's Amended and Restated
Certificate of Limited Partnership filed in the office of
the Secretary of State of the State of Delaware, as
amended from time to time.
Change in Control: As to any Partner, a change, shift or transfer of
Control with respect to such Partner, including, without limitation, any
change in the Control of any Person Controlling such Partner; provided,
however, that no Change in Control shall be deemed to have occurred upon
any such change, shift or transfer of Control of the Ultimate Control
Person in respect of such Partner.
Class A Unit: A fractional interest in all the capital of the
Partnership equal, on the date hereof, to one thousandth of one percent of
all such capital as of the date hereof (exclusive of capital, if any,
attributable to the capital stock of each of SF Holdings and Florida
Equity Corp.).
Class B Units: Collectively, the Class B-1 Units and
the Class B-2 Units.
Class B-1 Unit: A fractional interest in all the interest and
rights, if any, of the Partnership attributable to the capital stock of SF
Holdings equal to one thousandth of one percent of all such interest and
rights.
Class B-2 Unit: A fractional interest in all the
interest and rights of the Partnership attributable to the
capital stock of Florida Equity Corp. equal to one thou-
sandth of one percent of all such interest and rights.
<PAGE>
-5-
Code: The Internal Revenue Code of 1986, as amended
from time to time, or any successor statute or statutes to
the Internal Revenue Code of 1986.
Control, Controlling, Controlled: As to any Person, the possession,
directly or indirectly, of the power to direct or cause the direction of
the management and policies of such Person, whether through ownership of
voting securities or partnership interests, by contract or otherwise.
Conversion Notice: The notice required to be given by
a holder of one or more Convertible Notes in order to exer-
cise the Conversion Right.
Conversion Right: The right to convert the indebted-
ness evidenced by the Convertible Notes into Class A Units
(or a fraction of a Class A Unit).
Convertible Note Documents: The Convertible Notes,
together with the Convertible Note Indenture.
Convertible Note Indenture: The indenture (as from
time to time amended) pursuant to which the Convertible
Notes are being issued on the date hereof.
Convertible Notes: The Company's Increasing Rate Con-
vertible Notes due 2004.
Coopers & Lybrand OYDL: Collectively, Coopers & Lybrand OYDL, Inc.
and Coopers & Lybrand OYDL Limited, as the trustee in the bankruptcy for
Olympia & York Developments Limited, an Ontario corporation.
Core Properties: Those parcels of real property located at (i) 53
State Street, Boston, Massachusetts, (ii) One Liberty Plaza, New York, New
York, (iii) 245 Park Avenue, New York, New York, (iv) One World Financial
Center, New York, New York, (v) Two World Financial Center, New York, New
York, and (vi) Four World Financial Center, New York, New York, in each
case together with the office building and other improvements existing
thereon.
Disputed MCJV Recovery: The recovery that may be realized by the
Partnership or Persons wholly-owned by it from the sale of the MCJV Lands
or the stock of Florida Equity Corp., the amount of which is dependent
upon the resolution of the claims alleged in a suit captioned In re
Holywell
<PAGE>
-6-
Corp., Case No. 84-01590/94-BKC-PGH, before the United
States Bankruptcy Court for the Southern District of
Florida.
Disputed Realty Corp. Assets: The Disputed MCJV Recov-
ery and the Disputed SF Cash.
Disputed SF Cash: The cash of SF Holdings, subject to
a claim of ownership that has been made by Coopers & Lybrand
OYDL in a case before the Ontario Court of Justice captioned
Coopers & Lybrand OYDL Limited v. Olympia & York Realty
Corp. and Olympia & York SF Holdings Corporation, Ontario
Court Action No. 93-CQ-38609.
Dragon Control Group: Any of the following Persons or any group of
such Persons (other than Dragon Partner): Mr. Li Ka Shing, his spouse, any
child, grandchild or remoter issue or descendant of Mr. Li Ka Shing, any
spouse of any such child, grandchild, remoter issue or descendant or any
of their estates (collectively called the "Li Family Group"); (ii) any
trust or trusts substantially all of the beneficiaries of which consist of
one or more members of the Li Family Group, whether living or potential,
either alone or together with one or more charitable objects established
or to be established by, in the name of or in memory of any Person or
Persons who are themselves Li Group Members; or (iii) any one or more
Persons who are Controlled by any Person or group of Persons referred to
in clauses (i) or (ii) above or by any other Person or group of Persons
that is or are themselves Li Group Members by virtue of this paragraph
(iii).
Equity Interest: With respect to each Partner or assignee of a
Partner at any time, that portion of all the Class A Units then
outstanding that is then owned by such Partner or assignee, being equal to
the quotient of the number of Class A Units owned by such Partner or
assignee at such time divided by the total number of all Class A Units
then outstanding.
Excluded Class B Partners: The Persons that are Founding Limited
Partners on the date hereof and those other Persons identified as
"Excluded Class B Partners" on Schedule I to this agreement.
Excluded Holders: The following Persons: (i) the Man-
aging General Partner, (ii) each Additional General Partner
<PAGE>
-7-
having any authority to act for or on behalf of or to bind the Partnership
on any matter, (iii) each Affiliate or Related Person of the Managing
General Partner or any such Additional General Partner, (iv) each Person
that is a Founding Limited Partner on the date hereof and (v) each
Affiliate of any Person specified in clauses (i) through (iv) above.
Fair Market Value: As to any property, the price at which a willing
seller would sell and a willing buyer would buy such property having full
knowledge of the facts, and assuming each party acts on an Arm's-length
Basis with the expectation of concluding the purchase or sale within a
reasonable time.
Florida Equity Corp.: A Florida corporation that holds
a 50% interest in MCJV and is wholly-owned by the
Partnership.
Founding Limited Partners: BPHI Partner, CIBC Partner, Dragon
Partner and Citibank Partner; provided, however, that (i) no assignee or
transferee of any such Partner (other than a Wholly Owned Affiliate
thereof) shall be a Founding Limited Partner (the rights of each such
Partner as a Founding Limited Partner being personal to such Partner and
not assignable or otherwise transferable except to a Wholly Owned
Affiliate as aforesaid), (ii) BPHI Partner shall cease to be a Founding
Limited Partner upon any Change in Control of BPHI Partner or any Transfer
by BPHI Partner of its direct or indirect Interest after which BPHI
Partner and its Affiliates shall own beneficially or of record a number of
Class A Units that is less than [23]% of the number of Class A Units
issued on the date hereof to BPHI Partner, (iii) CIBC Partner shall cease
to be a Founding Limited Partner upon any Change in Control of CIBC
Partner or any other Transfer by either CIBC Partner or Dragon Partner of
its direct or indirect Interest after which CIBC Partner and Dragon
Partner and their Affiliates collectively shall own, beneficially or of
record, a number of Class A Units that is less than [46]% of the aggregate
number of Class A Units issued on the date hereof to CIBC Partner and
Dragon Partner, (iv) Dragon Partner shall cease to be a Founding Limited
Partner upon any Change in Control of Dragon Partner or any other Transfer
by either CIBC Partner or Dragon Partner of its direct or indirect
Interest after which CIBC Partner and Dragon Partner and their Affiliates
collectively shall own, beneficially or of record, a number of Class A
Units
<PAGE>
-8-
that is less than 46% of the aggregate number of Class A Units issued on
the date hereof to CIBC Partner and Dragon Partner, and (v) Citibank
Partner shall cease to be a Founding Limited Partner upon any Change in
Control of Citibank Partner or any other Transfer of its direct or
indirect Interest after which Citibank Partner and its Affiliates shall
own beneficially or of record a number of Class A Units that is less than
[52]% of the number of Class A Units issued on the date hereof to Citibank
Partner. Without limiting the foregoing provisions of this definition,
each of CIBC Partner, Dragon Partner and Citibank Partner shall cease to
be a Founding Limited Partner upon the consummation of any Qualified
Public Offering of Class A Units in which such Partner and its Affiliates
are offered (a reasonable time in advance of such Qualified Public
Offering) the opportunity, or are entitled by contract, to participate as
to all their Class A Units and fail to do so under circumstances where the
registration and sale of all the Class A Units owned beneficially by them
(together with the registration and sale of all other Class A Units to be
sold in such Qualified Public Offering) would not have resulted in per
unit proceeds of sale that were lower (other than by a de minimis amount)
than the amount that would be obtained absent the registration and sale of
all the Class A Units owned by them, as reasonably determined by the
managing underwriter of such Qualified Public Offering prior to the
effective date of such Qualified Public Offering.
GAAP: As defined in Section 7.09.
General Partners: The Managing General Partner and all
Additional General Partners as a group.
Group: As defined in Sections 13(d)(3) and 14(d)(2) of
the Securities Exchange Act of 1934, as amended and in
effect on the date hereof.
Implementing Transactions: Those agreements, actions
and transactions described in Schedule 18 to the Plan.
Independent Accountants: As defined in Section 7.09.
Initial Unit Value: The deemed Fair Market Value of a Class A Unit
on the date hereof, being $ (viz., the product of .001% and the
Partnership Reorganization Value).
<PAGE>
-9-
Interest: As to each Partner, such Partner's rights to participate
in the income, gains, losses, deductions and credits of the Partnership,
together with all other rights and obligations of such Partner under this
agreement.
JMB: JMB/245 Park Avenue Associates, Ltd.
JMB Agreement: The JMB Transaction Agreement, dated as of the date
hereof, pursuant to which, among other things, the Partnership provides to
JMB and JMB Partner certain rights contemplated in Sections 15.8 and 18.13
of the Plan.
JMB Control Person: JMB Realty Corporation, a Delaware
corporation, and its successors and assigns.
JMB Controlled Affiliate: A Person (i) Controlled by the JMB Control
Group or that Controls the JMB Control Group and (ii) in which the JMB
Control Person or a Person that Controls the JMB Control Person owns
directly or indirectly more than 50% of all capital and profits interests.
JMB Disqualification Event: The occurrence of any
event specified in subclause (x) or (y) of clause (B) of the
last sentence of subsection 4.02(e).
Limited Partners: The Persons identified as Limited Partners on
Schedule I and any other Person that hereafter becomes a limited partner
of the Partnership in accordance with the provisions of Article 9 or
Section 4.02 of this agreement.
Majority Interest: At any time, an interest, direct or indirect, in
any Person or group of Persons (including, without limitation, the
Partnership but excluding all Ultimate Control Persons and all Persons
that Control any Ultimate Control Person) which, at such time, represents
beneficial ownership of more than 50% of the outstanding Equity Interests
in the Partnership.
Managing General Partner: World Financial Properties, Inc., a
Delaware corporation, unless and until such corporation shall cease to be
a general partner of the Partnership pursuant to subsection 10.01(c)
hereof, and thereafter any successor Managing General Partner of the
Partnership admitted pursuant to Section 9.04 hereof.
<PAGE>
-10-
MCJV: Miami Center Joint Venture, a Florida joint
venture.
MCJV Lands: Those certain four parcels of real estate located east
of Southeast 2nd Avenue, west of Biscayne Bay, north of the Miami River,
and south of Southeast 2nd Street in Miami, Florida.
New Partners: Each Person that executes a counterpart
of this agreement on or as of the date hereof other than the
Original Partners.
New 245 Park LP: The Delaware limited partnership that owns 245 Park
Avenue.
Original Partners: BPHI and World Financial Proper-
ties, Inc.
Original Partnership Agreement: The letter agreement dated as of
October 8, 1996 between the Original Partners pursuant to which the
Partnership was formed as a limited partnership under the Act.
Partners: The Managing General Partner, any Additional
General Partners and the Limited Partners as a group.
Partnership Reorganization Value: $ .
Person: A natural person or a corporation, partner-
ship, limited liability company, trust, unincorporated asso-
ciation or other entity.
Plan: The Third Amended Joint Plan of Reorganization of Olympia &
York Realty Corp., et al., Chapter 11 case number 92B42698 (JLG) (jointly
administered), dated September 12, 1996, as confirmed by the Bankruptcy
Court on September 20, 1996, as such Plan may be amended from time to
time.
Public Market Effective Date: The first day after the date hereof
that (i) there shall have occurred a Qualified Public Offering and (ii)
the Class A Units shall be registered under Section 12 of the Securities
Exchange Act of 1934, as amended, and the Partnership shall be subject to
the reporting requirements of the Securities Exchange Act of 1934, as
amended.
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Qualified Public Offering: A sale of Class A Units to the public in
an underwritten offering of such Class A Units pursuant to a registration
statement (other than a registration statement on Form S-4 or Form S-8 or
any successor or other forms for purposes similar to the purposes of such
forms) of the Partnership filed and declared effective under the
Securities Act of 1933, as amended, that (i) is either (A) required to be
effected by the Partnership pursuant to the registration rights agreement
dated as of the date hereof by and among the Founding Limited Partners,
JMB Partner and the Partnership or (B) duly authorized by all requisite
corporate and shareholder action of the Managing General Partner and (ii)
results in an active trading market in Class A Units.
Qualifying Interest: At any time, an interest, direct or indirect,
in any Person or group of Persons (including, without limitation, the
Partnership but excluding all Ultimate Control Persons and all Persons
that Control any Ultimate Control Person) which, at such time, represents
beneficial ownership of 35% or more, but not more than 50%, of the
outstanding Equity Interests in the Partnership.
Record Holder: The Person in whose name any Class A Unit is
registered on the register maintained by the Partnership pursuant to the
provisions of Section 9.15.
Related Person: As to any General Partner, at any time, any Person
that is then (i) an Affiliate of such General Partner (other than a Person
Controlled by the Partnership), (ii) the Record Holder or beneficial owner
of Class A Units representing 20% or more of all the Class A Units then
outstanding, (iii) the Record Holder or beneficial owner of Additional
Equity Interests of any class or series representing 20% or more of all
Additional Equity Interests in such class or series then outstanding, (iv)
the record or beneficial owner of 10% or more of the then outstanding
equity securities (of any class or series) of such General Partner, (v)
any Founding Limited Partner (other than Dragon Partner) or (vi) any
Affiliate of a Person described in clause (ii), (iii), (iv) or (v) above
(other than a Person Controlled by the Partnership).
Required Founding Limited Partners: The following Per-
sons: (i) Citibank Partner (but only so long as Citibank
Partner shall be a Founding Limited Partner), and (ii) other
Persons then constituting Founding Limited Partners whose
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Equity Interests aggregate (together with the Equity Interest of Citibank
Partner) not less than 80% of the aggregate Equity Interest of all Persons
that then constitute Founding Limited Partners.
Required Partners: As defined in subsection 9.06(b).
Required Unrestricted Unitholders: At any time, Persons constituting
(i) the Record Holders of Unrestricted Units then representing more than
50% of all Unrestricted Units then outstanding and (ii) (A) if, at such
time, any Person or Group (together with its Affiliates) shall then hold
(beneficially or of record) Unrestricted Units representing more than 40%
of all Unrestricted Units then outstanding, (1) such Person or Group
(together with its Affiliates) and (2) the Record Holders of Unrestricted
Units constituting not less than 66 2/3% of all then outstanding
Unrestricted Units not then held of record or beneficially, directly or
indirectly, by (x) such Person or Group (or any of its Affiliates) or (y)
any Excluded Holder and (B) at all other times, Record Holders of
Unrestricted Units constituting not less than 66 2/3% of all then
outstanding Unrestricted Units not then held of record or beneficially,
directly or indirectly, by any Excluded Holder.
SF Holdings: Olympia & York SF Holdings Corporation, a New Brunswick
corporation that is wholly-owned by the Partnership and a Debtor in the
Reorganization Cases (as defined in the Plan).
Tag Along Sale: A Qualifying Tag-Along Sale or a
Majority Tag-Along Sale.
Tag Along Sale Percentage: As to each Tag-Along Partner in respect
of any particular Tag-Along Sale, the quotient (expressed as a percentage)
obtained by dividing (i) the maximum number of Class A Units of such
Tag-Along Partner specified in the Tag-Along Notice given by such Tag-
Along Partner in respect of such Tag-Along Sale by (ii) the total number
of then outstanding Class A Units (computed on a basis that assumes all
Convertible Notes (exclusive of any accrued interest in respect thereof)
have been converted into Class A Units).
Tax Advance: As defined in the Plan (as in effect on
the date hereof).
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Transfer: Any direct or indirect transfer, sale, conveyance, pledge,
hypothecation or other disposition of the direct or indirect beneficial
ownership of all or any part of an Interest, including, without
limitation, any of the foregoing that occurs by virtue of transfer of
securities of any Person (other than an Ultimate Control Person) or the
occurrence of any Change in Control.
Transfer Agent: The Managing General Partner, in its capacity as
transfer agent pursuant to the provisions of Section 9.15, and each
successor Person appointed by the Managing General Partner to act as such
transfer agent.
Transfer Application: An application to register a
Transfer of one or more Class A Units, substantially in the
form annexed hereto as Exhibit B.
Treasury Regulations: Regulations promulgated under
the Code and from time to time in effect.
245 Park Avenue: That certain parcel of real property
located at 245 Park Avenue, New York, New York, together
with the office building and other improvements existing
thereon.
Ultimate Control Person: In respect of (i) BPHI Partner, Brookfield
Properties Corporation, (ii) CIBC Partner, Canadian Imperial Bank of
Commerce, (iii) Citibank Partner, Citibank, N.A., (iv) JMB Partner, the
JMB Control Person, (v) Dragon Partner, the Dragon Control Group and (vi)
any other Partner, any Person that directly or indirectly Controls such
Limited Partner if such Person (a) has issued and outstanding at least one
class of equity securities that is listed on a national securities
exchange in the United States and (b) has net assets in excess of
$100,000,000 as of the end of its most recently concluded fiscal year.
Unit Certificate: A certificate, substantially in the
form of Exhibit A annexed hereto, evidencing ownership of
one or more Class A Units.
Unit Value: As of any date, the Fair Market Value of a Class A Unit,
as determined in good faith by the Managing General Partner (taking
account of all relevant considerations, including, without limitation, the
Fair Market Value of the assets of the Partnership, the liabilities of the
Partnership and the terms of any Additional Equity Interests
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(including, without limitation, any Additional Equity Interests that are
exchangeable for or convertible into different Additional Equity
Interests)); provided, however, that, in each case where Class A Units are
to be issued to a General Partner or a Related Person of a General Partner
or a Founding Limited Partner (other than Dragon Partner), such
determination shall not be effective unless (i) confirmed in writing by an
independent investment banking institution of national reputation selected
by the Managing General Partner or (ii) in the same transaction and at the
same time (and on the same terms and for the same consideration per Class
A Unit) a greater number of Class A Units are to be issued to Persons that
are not (A) a General Partner, (B) a Related Person of a General Partner
or (C) a Founding Limited Partner (other than Dragon Partner).
Unrestricted Units: Class A Units (i) contemplated in the Plan to be
issued upon consummation of the Plan to JMB Partner, (ii) issued upon
conversion of any Class B Units transferred to JMB Partner pursuant to
Section 2 of the JMB Agreement, (iii) contemplated in the Plan to be
issued upon consummation of the Plan to a Limited Partner that is not a
Founding Limited Partner on the date hereof, (iv) issued upon exercise of
the Conversion Right (other than in respect of any Convertible Note
distributed to any Person that is a Founding Limited Partner on the date
hereof, or any assignee thereof, pursuant to Section 20.5 of the Plan) or
(v) except as otherwise provided in clause (ii) above, issued upon
conversion of Class B Units held on the date hereof by any Person other
than Excluded Class B Partners, all of which Class A Units shall retain
their character as Unrestricted Units notwithstanding any Transfer
thereof; provided, however, that Unrestricted Units shall not include any
Class A Units included at any time in the Aggregate Disallowed Amount (as
defined in the Plan) relating to the Subclass 7.11.1 Disputed Claims
Debt/Equity Escrow (as defined in the Plan).
Wholly Owned Affiliate: With respect to any Person, any Affiliate of
such Person, the ultimate beneficial ownership of which Affiliate is held
by the same Persons and in the same proportions as the ultimate beneficial
ownership of such Person is held.
Withholding Advance: As defined in Section 7.12.
<PAGE>
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ARTICLE 2 - CONTINUATION
2.01 Continuation. The Partnership was heretofore formed by the
Original Partners pursuant to the provisions of the Act and the Managing General
Partner has heretofore filed a certificate of limited partnership in accordance
with the provisions of the Act in respect of the Partnership. The Partners
hereby continue the Partnership as a limited partnership in accordance with the
provisions of the Act.
2.02 Filing; Publication. The Managing General Partner shall take
all action required by law to continue and maintain the Partnership as a limited
partnership under the Act and under the laws of all jurisdictions in which the
Partnership may elect to conduct business, including, without limitation, the
filing of amendments to the Certificate with the Del- aware Secretary of State
and qualification of the Partnership as a foreign limited partnership in the
jurisdictions in which such qualification shall be required, as determined by
the Managing General Partner. The Managing General Partner shall also promptly
register the Partnership under applicable assumed or fictitious name statutes or
similar laws.
2.03 Name. The name of the Partnership shall continue to be World
Financial Properties, L.P. The Managing General Partner may adopt such assumed
or fictitious names as it deems appropriate in connection with the
qualifications and registrations referred to in Section 2.02.
2.04 Place of Business; Registered Agent. The location of the
principal office of the Partnership shall initially be c/o World Financial
Properties, Inc., One Liberty Plaza, New York, New York 10006, and thereafter at
such other location as the Managing General Partner may designate upon written
notice to the other Partners. The Partnership's registered agent in the State of
Delaware shall be The Corporation Trust Company, having an address at 1209
Orange Street, Wilmington, Delaware.
2.05 Partners. The name and address of each Partner
shall be as set forth in the books and records of the
Partnership.
2.06 Implementing Transactions. The Managing Gen-
eral Partner shall cause the Partnership and Persons Controlled
by it to take all actions necessary or desirable in the judg-
ment of the Managing General Partner to consummate or give
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effect to the Implementing Transactions. Without limiting the generality of the
immediately preceding sentence, the Managing General Partner is authorized to
cause the Partnership and the Persons Controlled by it to enter into and perform
its and their obligations under or in respect of any and all agreements
contemplated or deemed necessary by the Managing General Partner to consummate
the Implementing Transactions.
ARTICLE 3 - BUSINESS PURPOSE
3.01 Character of Business.
(a) The business of the Partnership shall be to (i) acquire, own,
operate, manage, finance, lease, dispose of and otherwise deal with interests in
real estate and securities related to or secured by interests in real estate,
such interests to be owned directly or indirectly (as, for example, through the
ownership of equity securities in Persons that own or otherwise deal with
interests in real estate) and (ii) transact any and all other businesses for
which limited partnerships may be formed under Delaware law.
(b) In furtherance of its business, the Partnership may participate
in other Persons and serve as general or limited partner, joint venturer,
manager, agent or representative for such other Person.
3.02 Authorized Activities. In carrying out the purposes of the
Partnership, but subject to all other provisions of this agreement, the
Partnership is authorized to engage in any kind of lawful activity, and perform
and carry out contracts of any kind, necessary or advisable in connection with
the accomplishment of the purposes and business of the Partnership described
herein and for the protection and benefit of the Partnership.
ARTICLE 4 - CAPITAL CONTRIBUTIONS
4.01 Initial Contributions. In accordance with all applicable
provisions of the Plan, each Partner, on the date hereof, has made an initial
contribution of capital (a "Capital Contribution") to the Partnership. Each
Partner on the date hereof shall own that number of Class A Units and Class B
Units as is set forth on Schedule I and shall, in respect of the Class A Units
owned by it, be issued a Unit Certificate.
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4.02 Additional Contributions.
(a) No Partner shall be obligated to make any Capital Contribution
other than as set forth in Section 4.01. Without limiting any other right or
power of the Managing General Partner hereunder or under applicable law, the
Managing General Partner may at any time without notice to any other Partner
(except as may be required pursuant to subsection 7.10(b)) accept Capital
Contributions of cash or property from and issue new Class A Units or Additional
Equity Interests to any Partners or admit new Partners to the Partnership in
connection with the making by such Partners of Capital Contributions consisting
of cash or property (including, without limitation, any such Capital
Contribution made in connection with the creation of an umbrella partnership
real estate investment trust or similar investment vehicle) and may issue Class
A Units or Additional Equity Interests of the Partnership to such Partners;
provided, however, that no Additional Equity Interests may be issued in exchange
for Class A Units. Each Person that makes any such Capital Contribution (other
than any Persons entitled to Class A Units pursuant to Article 5 or upon
exercise of the Conversion Right) shall be issued (i) Class A Units in a number
equal to the quotient obtained by dividing the Fair Market Value of such Capital
Contribution (as determined by the Managing General Partner in good faith) by
the Unit Value in effect immediately preceding the making of such Capital
Contribution or (ii) such Additional Equity Interests of the Partnership as the
Managing General Partner shall, in good faith, deem to be equal in value to the
Fair Market Value of such Capital Contribution (as determined by the Managing
General Partner in good faith, taking account of all relevant considerations,
including, without limitation, the Fair Market Value of the assets of the
Partnership, the liabilities of the Partnership and the terms of any Additional
Equity Interests (including, without limitation, any Additional Equity Interests
that are exchangeable for or convertible into different Additional Equity
Interests)); provided, however, that, in any case where Class A Units or
Additional Equity Interests are to be issued to a General Partner or a Related
Person of a General Partner or to a Founding Limited Partner (other than Dragon
Partner), such determination shall not be effective unless (A) confirmed in
writing by an independent investment banking institution of national reputation
selected by the Managing General Partner or (B) in the same transaction and at
the same time (and on the same terms and for the same consideration per Class A
Unit or per Additional Equity Interest) a greater number of Class A Units or
Additional Equity Interests are to be
<PAGE>
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issued to Persons that are not (1) a General Partner, (2) a Related Person of a
General Partner or (3) a Founding Limited Partner (other than Dragon Partner).
(b) Notwithstanding any contrary provision of this agreement, the
Managing General Partner may not cause the Partnership to issue any new Class A
Units or Additional Equity Interests in the Partnership unless after giving
effect thereto (and any contemporaneous issuance or Transfers of Class A Units
or Additional Equity Interests to the Managing General Partner) the Managing
General Partner shall own at least a 1% interest in the capital of, and in all
items of income, gain, loss, deduction and credit of, the Partnership; provided,
however, that, upon the exercise of the Conversion Right by any holder of
Convertible Notes, the Managing General Partner and the Founding Limited
Partners shall take such actions (including, without limitation, the Transfer of
Class A Units by the Founding Limited Partners to the Managing General Partner)
as shall be necessary to cause the provisions of this subsection to be complied
with as of the time of the issuance of any Class A Units in respect of such
exercise.
(c) The Managing General Partner may, without the approval of any
Partner, admit Additional General Partners to the Partnership in connection with
the making of a Capital Contribution in accordance with the provisions of
subsection 4.02(a) or (with the written approval of the affected Limited
Partner) upon a conversion of all or any part of the Interest of any Limited
Partner into a general partner's Interest in the Partnership. All Additional
General Partners shall have such rights and authority to act for or on behalf of
or to bind the Partnership as shall be determined from time to time by the
Managing General Partner and reflected in an amendment to this agreement;
provided, however, that no Additional General Partner shall have any greater
rights to act for or on behalf of or to bind the Partnership than have herein
been granted to the Managing General Partner. No Additional General Partner
shall have any authority to act for or on behalf of or to bind the Partnership
until such Additional General Partner shall have executed an instrument pursuant
to which it agrees to be bound by the provisions of this agreement (as amended
by any amendment executed by the Managing General Partner pursuant to the
provisions of the immediately preceding sentence).
(d) Subject to the provisions of subsection 9.05(c), the Managing
General Partner may, without the approval of any Partner (other than the
affected Additional General Partner,
<PAGE>
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which approval may be withheld in its absolute discretion), convert all or any
part of the Interest of any Additional General Partner into a limited
partnership Interest in the Partnership.
(e) JMB Partner shall be an Additional General Partner of the
Partnership, and shall have (i) all voting and approval rights that are
available generally to Limited Partners of the Partnership and (ii) no authority
to act for or on behalf of or to bind the Partnership or any other Partner on
any matter except to the extent that JMB Partner may hereafter be authorized in
writing by the Managing General Partner to act for or on behalf of or to bind
the Partnership pursuant to the provisions of subsection 4.02(c).
Notwithstanding any contrary provision of this agreement, (A) each and every
transferee of any Class A Unit from JMB Partner (other than a transferee that is
a JMB Controlled Affiliate) shall, effective immediately upon such transferee's
acquisition thereof, hold such Class A Unit as if transferred from a Limited
Partner of the Partnership and not a General Partner and (without the written
consent of the Managing General Partner) no such transferee shall be admitted to
the Partnership except as a Limited Partner and (B) JMB Partner shall cease to
be an Additional General Partner and the entire Interest in the Partnership of
JMB Partner shall automatically become a limited partnership Interest upon any
(x) Transfer by JMB Partner or any JMB Controlled Affiliate of Class A Units to
any Person that results in JMB Partner, JMB and all JMB Controlled Affiliates
owning less than 5% of the Class A Units originally issued to JMB Partner
hereunder, (y) Bankruptcy of JMB or JMB Partner or (z) receipt by the Managing
General Partner of a notice from JMB Partner in which JMB Partner elects to
convert its Interest to a limited partnership Interest.
4.03 Rights of Holders of Class B Units; Cancella-
tion by Managing General Partner.
(a) The holders of Class B Units shall be given credit (to be
applied only to the issuance of Class A Units as herein provided) for all the
income and capital, if any, of the Partnership with respect to the capital stock
of each of SF Holdings and Florida Equity Corp. during the period prior to any
conversion of such Class B Units into Class A Units as herein contemplated. The
holders of Class B Units (in their capacities as such holders only) shall not be
entitled to any interest in the income or capital of the Partnership with
respect to any other asset of the Partnership. Prior to
<PAGE>
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conversion of any Class B Units into Class A Units pursuant to Article 5 hereof,
the holders of such Class B Units (in their capacities as such) shall not have
any right to vote on any matters subject to the approval of the Partners or to
receive any distribution from the Partnership (other than (in the event the
Partnership shall be liquidated prior to the conversions contemplated in Article
5 of this agreement) a distribution of the capital stock of each of SF Holdings
and Florida Equity Corp. or the proceeds thereof (pro rata based on the number
of Class B Units held by each Partner) upon liquidation of the Partnership).
(b) The Managing General Partner may, by written notice given to the
Partners at any time, cancel all or part of the Class B Units, as appropriate,
if (i) the Managing General Partner shall have determined in its reasonable
discretion (based on facts or circumstances hereafter becoming known to the
Managing General Partner (including, without limitation, the issuance of any
rulings or judgments in any proceedings related to the Disputed Realty Corp.
Assets)) that, notwithstanding commercially reasonable efforts by the
Partnership to enforce or negotiate its claims with respect to the Disputed
Realty Corp. Assets, the net value to the Partnership of the capital stock of SF
Holdings or of Florida Equity Corp. is insufficient to justify the continued
expenditure of effort or funds by the Partnership to realize on its claims with
respect to the Disputed SF Cash or the Disputed MCJV Recovery or (ii) there
shall have been issued a final nonappealable ruling by a court of competent
jurisdiction denying the validity of the Partnership's claims to the Disputed SF
Cash or the Disputed MCJV Recovery.
(c) Nothing in this Section 4.03 shall limit the Partnership's
rights against Limited Partners holding Class B Units under the provisions of
Section 7.12 of this agreement with respect to Withholding Advances or under
Section 20 of the Plan with respect to Tax Advances.
4.04 Partners' Accounts.
(a) Separate capital accounts shall be maintained for each Partner
consisting of all Capital Contributions made by such Partner, increased by the
amount of Partnership income and gain allocated to it pursuant to this agreement
and decreased by (i) the Fair Market Value of property (net of any liability
secured by such property that the Partner is considered to assume or take
subject to) and the amount of cash
<PAGE>
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distributed to such Partner pursuant to this agreement and (ii) the amount of
Partnership losses and deductions allocated to it pursuant to this agreement.
(b) If any Partner has a deficit balance in its capital account
(after giving effect to all Capital Contributions, distributions and
allocations), such Partner shall have no obligation to make any contribution to
the capital of the Partnership by reason of such deficit.
4.05 Transfers or Conversions During Year. To avoid an interim
closing of the Partnership's books, the share of profits and losses under this
Article 4 of a Partner that assigns or otherwise makes a direct Transfer of part
or all of its Interest during any calendar year or is the assignee or transferee
of such a Partner or is issued any Class A Units during such calendar year
pursuant to the provisions of Section 5.01 or 5.02 or the Convertible Note
Documents or is issued any new Class A Units or Additional Equity Interest
pursuant to the provisions of subsection 4.02(a) during such calendar year shall
be determined by (i) in the case of any such assignment or other direct
Transfer, prorating (as between the transferor and its transferee) on a per-day
basis the total amount of the profits and losses of the Partnership attributable
to the Interest (or portion thereof) so transferred for such year and (ii) in
the case of any such issuance, by allocating the total amount of profits and
losses of the Partnership (other than items attributable to the capital stock of
SF Holdings and Florida Equity Corp., which shall be allocated in accordance
with the provisions of subsection 6.01(b)) on a per-day basis in accordance with
each Partner's Equity Interest in the Partnership (or otherwise as may be
required to give effect to the provisions of any Additional Equity Interests) as
of the end of such day.
ARTICLE 5 - CONVERSION RIGHTS
5.01 Class B-1 Unit Conversion. If and when SF Holdings' ownership
interest in the Disputed SF Cash ceases to be disputed by reason of the entry of
a final nonappealable order of the Bankruptcy Court or another court of
competent jurisdiction either (i) confirming SF Holdings' ownership interest in
the Disputed SF Cash or (ii) approving an executed and delivered settlement
agreement with Coopers & Lybrand OYDL, or any successor in interest to Coopers &
Lybrand OYDL, and SF Holdings shall have received payment of any funds in
<PAGE>
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satisfaction of its claim to the Disputed SF Cash, the Managing General Partner
shall determine (which determination shall be confirmed in writing by the
Independent Accountants) the Fair Market Value (using an appropriate discount
rate in the event any payments are deferred for more than 30 days) of all funds
so received and to be received by SF Holdings pursuant to such order or
agreement, reduced by the sum of (A) the total liabilities of SF Holdings and
(without duplication) all costs of the Partnership and Persons Controlled by it
to realize such funds, including, without limitation, all applicable settlement
amounts or obligations, litigation costs and other out-of-pocket expenses of, or
funded by, the Partnership and Persons Controlled by it in respect of the
Disputed SF Cash or SF Holdings, plus (B) the amount, if any, previously
deducted from the Net MCJV Proceeds pursuant to subsection 5.03(b) (the Fair
Market Value of such funds, the "Net SF Cash"). Within thirty (30) Business Days
after the date (the "SF Deadline") that is last to occur of the date such court
order becomes final and nonappealable and receipt of such funds, the Managing
General Partner shall send (x) a notice to each other Partner setting forth such
determination and confirming the conversion that is contemplated in this Section
5.01 and (y) to each Partner that owned any Class B-1 Units a Unit Certificate
evidencing ownership of the Class A Units issued to such Partner upon such
conversion. Effective on and as of the SF Deadline, the then outstanding Class
B-1 Units shall, in the aggregate, automatically be converted into that number
of Class A Units (or that fraction of a Class A Unit) determined by dividing (1)
the Net SF Cash (subject to reduction pursuant to the provisions of subsection
5.03(a)), by (2) the Initial Unit Value, and each Partner that, immediately
preceding such conversion, held any Class B-1 Units shall be allocated in
respect thereof that number of such Class A Units determined by multiplying the
number of such Class A Units by a fraction, the numerator of which is the number
of Class B-1 Units held by such Partner immediately prior to such conversion and
the denominator of which is the total number of Class B-1 Units outstanding
immediately prior to such conversion.
5.02 Class B-2 Unit Conversion. If and when the Disputed MCJV
Recovery ceases to be disputed and there is received by the Partnership or any
Person that is wholly-owned by the Partnership the Partnership's or such
Person's share of the net cash proceeds of the MCJV Lands or the capital stock
of Florida Equity Corp., the Managing General Partner shall determine (which
determination shall be confirmed in writing by the Independent Accountants) the
amount of such proceeds, reduced
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by the sum of (A) the total liabilities of Florida Equity Corp. and (without
duplication) all costs of the Partnership and Persons Controlled by it to
realize such proceeds, including, without limitation, (i) the amount required to
be paid by the Partnership or Persons Controlled by it in accordance with the
Bank of Nova Scotia Settlement and (ii) any amounts funded by the Partnership or
Persons Controlled by it in respect of taxes, carrying costs and other out of
pocket expenses relating to the MCJV Lands (including, without limitation,
litigation and selling expenses) or Florida Equity Corp. or the liabilities
thereof, together with interest thereon at the rate of 10% per annum, compounded
annually, plus (B) the amount, if any, previously deducted from the Net SF Cash
pursuant to subsection 5.03(a) (such net amount, the "Net MCJV Proceeds").
Within thirty (30) Business Days after the day (the "MCJV Deadline") that is
last to occur of the entry of a final and nonappealable order of the Bankruptcy
Court approving the transaction that generates such proceeds, and receipt of
such proceeds, the Managing General Partner shall send (x) a notice to each
other Partner setting forth such determination and confirming the conversion
that is contemplated in this Section 5.02 and (y) to each Partner that owned any
Class B-2 Units a Unit Certificate evidencing ownership of the Class A Units
issued to such Partner upon such conversion. Effective on and as of the MCJV
Deadline, the then outstanding Class B-2 Units, in the aggregate, shall
automatically be converted into that number of Class A Units (or that fraction
of a Class A Unit) determined by dividing (x) the Net MCJV Proceeds (subject to
reduction pursuant to the provisions of subsection 5.03(b)), by (y) the Initial
Unit Value, and each Partner that, immediately preceding such conversion, held
any Class B-2 Units shall be allocated in respect thereof that number of such
Class A Units determined by multiplying the number of such Class A Units by a
fraction, the numerator of which is the number of such Class B-2 Units held by
such Partner immediately prior to such conversion and the denominator of which
is the total number of Class B-2 Units outstanding immediately prior to such
conversion.
5.03 Additional Conversion Adjustments.
(a) Notwithstanding the foregoing provisions of Section 5.01, if, on
the SF Deadline, a conversion of Class B-2 Units into Class A Units has not
already occurred, the Managing General Partner shall deduct from the amount of
Net SF Cash used in the formula described in Section 5.01 above the sum of (i)
all amounts funded by the Partnership or any Persons
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Controlled by it in respect of taxes, carrying costs and other out-of-pocket
expenses relating to the MCJV Lands or Florida Equity Corp. or the liabilities
thereof (including, without limitation, litigation and selling expenses),
whether or not funded in the form of loans, and (ii) the amount to be deposited
in a reserve to fund future litigation costs and other expenses of the type
referred to in the preceding clause (i) based on the Managing General Partner's
reasonable estimate of such costs and expenses. Any amounts to be reserved
pursuant to clause (ii) of the preceding sentence shall be subject to the
approval of the Bankruptcy Court.
(b) Notwithstanding the foregoing provisions of Section 5.02, if, on
the MCJV Deadline, a conversion of Class B-1 Units into Class A Units has not
already occurred, the Partnership shall deduct from the amount of Net MCJV
Proceeds used in the formula described in Section 5.02 above the sum of (i) all
amounts funded by the Partnership or any Persons Controlled by it in respect of
SF Holdings and the liabilities of SF Holdings (including, without limitation,
all applicable litigation and other out-of-pocket expenses relating to the
Disputed SF Cash or SF Holdings), whether or not funded in the form of loans,
and (ii) the amount to be deposited in a reserve to fund future litigation costs
and other expenses of SF Holdings while attempting to settle or litigate claims
relating to the Disputed SF Cash based on the Managing General Partner's
reasonable estimate of such costs and expenses. Any amounts to be reserved
pursuant to clause (ii) of the immediately preceding sentence shall be subject
to the approval of the Bankruptcy Court.
5.04 Net SF Cash and Net MCJV Proceeds. It is the intent of the
Partners that (i) the amount of the Net SF Cash should approximate the amount,
if any, by which the net worth of the Partnership, determined in accordance with
GAAP, as of the SF Deadline exceeds what the net worth of the Partnership,
determined in accordance with GAAP, would have been as of the SF Deadline if the
Partnership had never held any direct or indirect interest in SF Holdings, and
(ii) the amount of the Net MCJV Proceeds should approximate the amount, if any,
by which the net worth of the Partnership, determined in accordance with GAAP,
as of the MCJV Deadline, exceeds what the net worth of the Partnership,
determined in accordance with GAAP, would have been as of the MCJV Deadline if
the Partnership had never held any direct or indirect interest in Florida Equity
Corp. The provisions of Sections 5.01, 5.02 and 5.03 shall be construed and
enforced in a manner consistent with such intent.
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5.05 Convertible Note Documents. Contemporaneously with the
execution and delivery of this agreement, the Partnership is executing and
delivering the Convertible Note Documents. Upon the delivery of any Conversion
Notice and the satisfaction of any other conditions to exercise of the
Conversion Right by any holder of one or more Convertible Notes, the Managing
General Partner shall execute such instruments and take such other actions
(including, without limitation, issuance of one or more Unit Certificates) as
shall be necessary to evidence the conversion and issuance of Class A Units
contemplated by the Convertible Note Documents and such Conversion Notice.
5.06 Transfers Pursuant to JMB Agreement. Each of the Founding
Limited Partners shall make Transfers of Class B Units to JMB Partner at the
times and in the amounts required pursuant to the provisions of the JMB
Agreement.
ARTICLE 6 - PROFITS, LOSSES AND DISTRIBUTIONS
6.01 Profits and Losses.
(a) Subject to the provisions of subsection (b) of this Section
6.01, the Partnership's net profits or net losses shall be determined on an
annual basis and shall be allocated to the Partners or their assignees in
proportion to their Equity Interests; provided, however, that (i) to the extent
that the terms of any Additional Equity Interests require an allocation to the
holders of such Additional Equity Interests, the Managing General Partner shall
cause the allocations herein contemplated to take into account such terms (it
being understood that the allocations contemplated in this subsection 6.01(a) in
respect of any Class A Unit shall be the same as such allocations in respect of
each other Class A Unit) and (ii) except as expressly provided in subsection
7.02(b), no Limited Partner (in its capacity as a Limited Partner) shall be
personally liable for losses, costs, expenses, liabilities or obligations of the
Partnership in excess of its Capital Contributions under Article 4 hereof.
(b) Any income, gain, losses or deductions recognized by the
Partnership as a result of (i) the Disputed MCJV Recovery ceasing to be disputed
or as a result of any distribution with respect to, or disposition of, the stock
of Florida Equity Corp. shall be allocated to the holders of Class B-2 Units,
and (ii) the Disputed SF Cash ceasing to be disputed or as a result of any
distribution with respect to, or disposition
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of, the stock of SF Holdings shall be allocated to the holders
of Class B-1 Units.
6.02 Allocations for Tax Purposes.
(a) Subject to the provisions of subsection (b) of this Section
6.02, for income tax purposes, each item of income, gain, loss, deduction and
credit of the Partnership shall, subject to the provisions of Section 4.05, be
allocated among the Partners or their assignees in proportion to their Equity
Interests; provided, however, that (i) to the extent the terms of any Additional
Equity Interests require an allocation to the holders of such Additional Equity
Interests, the Managing General Partner shall cause the allocations herein
contemplated to take into account such terms (it being understood that the
allocations contemplated in this Section 6.02 in respect of any Class A Unit
shall be the same as such allocations in respect of each other Class A Unit) and
(ii) each such item with respect to property contributed to the Partnership by a
Partner or revalued pursuant to Treasury Regulations Section
1.704-1(b)(2)(iv)(f) shall be allocated among the Partners in a manner that
takes into account the variation between the adjusted tax basis of such property
and its book value, as required by Section 704(c) of the Code and Treasury
Regulations Section 1.704-1(b)(4)(i), using any method permitted by applicable
Treasury Regulations. Notwithstanding any contrary provision in this agreement,
(A) if requested by JMB Partner, the Partnership shall make or cause to be made
with respect to 245 Park Avenue the allocations contemplated in subsection
7.11(e) and (B) until such time as there shall occur a JMB Disqualification
Event, the allocations, debt sharing and other income tax treatments described
herein or in the JMB Agreement shall be complied with by the Partnership.
(b) Any income or gain recognized by the Partnership as a result of
the Disputed Realty Corp. Assets ceasing to be disputed or as a result of any
distribution with respect to, or disposition of, the stock of SF Holdings or of
Florida Equity Corp. shall be allocated to the holders of Class B-1 and Class
B-2 Units in accordance with the principles of Section 704(c) of the Code (it
being understood that, for book purposes, the initial Capital Contribution made
by the holders of Class B-1 and Class B-2 Units shall be fixed at the net value
of the stock of SF Holdings and the stock of Florida Equity Corp., respectively,
as and when the dispute affecting the value of each such asset is finally
resolved and such Class B Units are converted to Class A Units).
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6.03 Distributions. Annually, or at more frequent intervals as
determined by the Managing General Partner in its sole discretion, the then
Available Funds (as hereinafter defined) shall be distributed to the Partners or
their assignees in proportion to their Equity Interests; provided, however, that
to the extent that the terms of any Additional Equity Interests require
distribution of Available Funds to the holders of such Additional Equity
Interests in a particular order, ranking or amount, the Managing General Partner
shall cause the distribution of Available Funds to the holders of such
Additional Equity Interests to be in accordance with such terms (it being
understood that the distributions contemplated in this Section 6.03 in respect
of any Class A Unit shall be the same as such distributions in respect of each
other Class A Unit). "Available Funds" means (i) the Partnership's gross cash
receipts, less (ii) the Partnership's expenditures, less (iii) the amount that,
in the Managing General Partner's reasonable judgment, the Partnership should
retain or otherwise reserve in order to fulfill its business purposes or to
comply with the provisions of any debt or other obligation of the Partnership,
plus (iv) the amount by which, in the Managing General Part- ner's reasonable
judgment, any such reserve previously established and then existing shall be
reduced after taking into account the foregoing.
ARTICLE 7 - MANAGEMENT AND FINANCING MATTERS
7.01 Management of Business.
(a) Except as otherwise specifically provided to the contrary
herein, the Managing General Partner shall have full, exclusive and complete
discretion to manage the business and affairs of the Partnership and to take all
such actions as it deems necessary or appropriate to accomplish the purposes of
the Partnership as set forth herein; provided, however, that the actions of each
General Partner (to the extent such General Partner shall have any authority to
act for or on behalf of or to bind the Partnership on any matter) hereunder
shall at all times be in compliance with the provisions of Section 7.06. Nothing
contained in this Section 7.01 shall impose any obligation on any Person doing
business or dealing with the Partnership to inquire as to whether the Managing
General Partner has exceeded its authority in executing any contract, lease,
mortgage, note, deed or other instrument on behalf of the Partnership, and any
such Person shall be fully protected in relying upon the plenary authority of
the Managing General Partner.
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Except as otherwise provided in Article 8, each General Partner shall serve
without compensation for its services. Any General Partner may delegate such of
its respective powers and authority to managers, employees and agents of such
General Partner or of the Partnership as it shall deem necessary or appropriate
for the conduct of the Partnership's business; provided, however, that no
General Partner shall purport to authorize any such manager, employee or agent
to take any action that such General Partner is itself prohibited from taking
under the provisions of this agreement or (in the case of an Additional General
Partner) that such Additional General Partner has not been authorized to take
pursuant to the provisions of subsection 4.02(c).
(b) In carrying out the purposes of the Partnership, among other
things, the Managing General Partner is authorized to execute and deliver (i)
instruments evidencing the issuance of Class A Units or Additional Equity
Interests of the Partnership, (ii) all contracts, conveyances, assignments,
franchise agreements, licensing agreements and management contracts covering or
affecting the Partnership's assets, (iii) all checks, drafts and other orders
for the payment of the Partnership's funds, (iv) all promissory notes,
mortgages, deeds of trust, security agreements and other similar documents and
(v) all other instruments of any kind or character relating to the Partnership's
affairs, whether like or unlike the foregoing. No Partner other than the
Managing General Partner or any Additional General Partner (to the extent the
Managing General Partner shall have authorized such Additional General Partner
to act for or on behalf of or to bind the Partnership on any matter) shall have
any authority (actual or apparent) to act for or on behalf of or to bind the
Partnership.
(c) Meetings of the Partners may be called by the Managing General
Partner by giving ten (10) days prior written notice of the time, date, location
and purpose of the meeting; provided, however, that in the event of any
emergency affecting the Partnership or its assets, a meeting of the Partners may
be called by the Managing General Partner on such shorter notice as the Managing
General Partner shall deem appropriate in its reasonable judgment.
(d) Each Limited Partner or Additional General Partner may authorize
any Person or Persons, including, without limitation, the Managing General
Partner, to act for it by proxy on all matters on which a Limited Partner or
Additional General Partner may vote hereunder. Every proxy (i) must be
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signed by the Limited Partner or Additional General Partner or its
attorney-in-fact, (ii) shall expire eleven (11) months from the date thereof
unless the proxy provides otherwise and (iii) shall be revocable at the
discretion of the Limited Partner or Additional General Partner granting such
proxy.
(e) Any action required or permitted to be taken at a meeting of the
Partners may be taken without a meeting (and without advance notice thereof) if
a written consent setting forth the action to be taken is signed by the Partners
owning the percentage of the total Class A Units of the Partnership required to
take such action, which written consent may be evidenced in one or more
instruments. Consents need not be solicited from any other Partner if the
written consent of Partners owning such requisite percentage has been obtained
to take the action for which such solicitation was required.
(f) The Managing General Partner shall cause the Partnership to
perform its obligations under the JMB Agreement in accordance with the terms
thereof and shall not permit any Persons Controlled by the Partnership
(including, without limitation, New 245 Park LP) to take any actions that would
cause the Partnership to breach its obligations under the JMB Agreement.
7.02 No Management by Limited Partners; Limitation
of Liability.
(a) No Limited Partner, in its capacity as a limited partner, shall
take part in the day-to-day management, operation or control of the business and
affairs of the Partnership or have any right, power, or authority to act for or
on behalf of or to bind the Partnership or transact any business in the name of
the Partnership. Any approvals rendered or withheld by any of the Limited
Partners pursuant to this agreement shall be deemed as consultation with or
advice to the Managing General Partner in connection with the business of the
Partnership and, in accordance with the Act, shall not be deemed as
participation by any such Limited Partner in the business of the Partnership and
are not intended to create any inference that any such Limited Partner should be
classified as a general partner under the Act.
(b) No Limited Partner shall have any liability to any other Partner
or to the Partnership except (i) with respect to withholding under Section 7.12,
(ii) in connection with a breach or violation of any provision of this agreement
by such
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Limited Partner, (iii) in connection with a Tax Advance (but only to the extent
provided in Section 20.3.4 of the Plan) or (iv) as provided in the Act.
(c) No General Partner shall take any action that would subject any
Limited Partner (in its capacity as Limited Partner) to liability as a general
partner.
(d) No Limited Partner (in its capacity as such) may commence or
attempt to commence or join or attempt to join in any voluntary or involuntary
petition for bankruptcy or insolvency proceeding with respect to the Partnership
pursuant to the Bankruptcy Code. Neither the Partnership nor any General Partner
shall commence or consent to the commencement of any such proceeding unless the
commencement of such proceeding has been authorized by due corporate action of
the Managing General Partner.
7.03 Appointment of Agents, Officers or Representatives. The
Managing General Partner may appoint such agents, officers or representatives as
it deems appropriate, and may grant to them such titles or designations,
including, without limitation, that of President, Vice President, Managing Agent
or Managing Director, as it deems necessary or appropriate.
7.04 Title to Property; Nominee. All property owned by the
Partnership, whether real or personal, tangible or intangible, shall be deemed
to be owned by the Partnership as an entity, and no Partner, individually, shall
have any ownership of such property. Title to the Partnership's assets shall be
held in the Partnership's name or in the name of any nominee that the Managing
General Partner may designate. The Managing General Partner shall have the power
to enter into a nominee agreement with any such Person, and such agreement may
contain provisions indemnifying the nominee, except for his or its willful
misconduct.
7.05 Time Devoted to Business; Business with Related
Persons.
(a) The Managing General Partner shall devote such time to the
business of the Partnership as it in its discretion deems necessary for the
efficient operation of the Partner- ship's business.
(b) The Managing General Partner, in its discretion,
may cause the Partnership or any Person Controlled by the
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Partnership to transact business with any Affiliates or Related Persons of a
General Partner; provided, however, that, notwithstanding any provision to the
contrary in this agreement, except for agreements or arrangements that
constitute or are entered into in connection with the Implementing Transactions,
the Managing General Partner shall not cause or permit the Partnership or any
Person Controlled by the Partnership to enter into or suffer to exist any
transaction or series of related transactions with a General Partner or any
Related Person of a General Partner if such transaction or series of related
transactions is not on an Arm's-length Basis.
7.06 Fiduciary Duty; Exculpation. Each of the Managing General
Partner and each Additional General Partner (if any) having authority to act for
or on behalf of or to bind the Partnership shall act as a fiduciary for and in
the best interests of the Limited Partners and the Partnership; provided,
however, that (subject to the provisions of the proviso to subsection 7.05(b))
Affiliates or Related Persons of the General Partners shall at all times be free
to engage for their own account in all aspects of any business or investment in
which the Partnership is involved and may compete with the business and
investments of the Partnership; and provided, further, that neither the
foregoing provisions of this Section 7.06 nor any other provision hereof shall
be construed to require that the Managing General Partner or any Additional
General Partner having the authority to act for or on behalf of or to bind the
Partnership on any matter cause the Partnership to acquire any assets in
addition to its interest in the Core Properties or otherwise effect any other
expansion of the business of the Partnership, it being understood that any such
acquisition or other expansion shall be within the sole discretion of the
Managing General Partner or such Additional General Partner and that any such
acquisition or expansion will only be undertaken in compliance with all
applicable provisions of this agreement. No General Partner shall be liable,
responsible or accountable in damages or otherwise to the Partnership or any of
the other Partners for any act or omission performed or omitted in good faith on
behalf of the Partnership and in a manner reasonably believed to be (i) within
the scope of the authority granted by this agreement to such General Partner and
(ii) in the best interests of the Partnership. So long as any General Partner
shall not have violated the provisions of the proviso to the first sentence of
subsection 7.01(a) or the proviso to the last sentence of subsection 7.01(a),
such General Partner shall not be responsible for any misconduct or negligence
on the part of any agent (other than direct employees of such General Partner)
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if neither such General Partner nor any of its Related Persons derived any
improper personal benefit from such misconduct or negligence.
7.07 Indemnification.
(a) The Partnership shall indemnify and hold harmless each General
Partner and each other Person acting on behalf of the Partnership (an
"Indemnified Party") pursuant to the authority herein granted or otherwise (to
the extent such Indemnified Party is authorized to act), to the fullest extent
as would be permitted by applicable law of the State of Dela- ware affording
indemnification to persons acting on behalf of corporations organized in such
State (including, without limitation, any procedures set forth therein regarding
advancement of expenses to such Indemnified Party), from and against any and all
losses, claims, damages, liabilities, expenses (including, without limitation,
reasonable legal fees and expenses), judgments, fines, penalties, interests,
settlements and other amounts arising from any and all claims, demands, actions,
suits or proceedings, whether civil, criminal, administrative or investigative,
relating to the activities of such Indemnified Party on behalf of the
Partnership or as a result of its status as a Partner.
(b) The Partnership shall have the authority to purchase and
maintain such insurance policies on behalf of the Indemnified Parties as the
Managing General Partner shall determine, which policies may cover those
liabilities the Managing General Partner reasonably believes may be incurred by
an Indemnified Party in connection with the operation of the business of the
Partnership. The right to procure such insurance on behalf of the Indemnified
Parties shall in no way mitigate or otherwise affect the right of any such
Indemnified Party to indemnification pursuant to the provisions of subsection
7.07(a) hereof.
(c) The provisions of this Section 7.07 are for the benefit of the
Indemnified Parties, their heirs, successors, assigns and administrators and
shall not be deemed to create any rights in or benefit to any other Person.
7.08 Books and Records at Principal Place of Business. The Managing
General Partner shall cause the Partnership to maintain at its principal place
of business full and accurate books of the Partnership showing all receipts and
expenditures, assets and liabilities, profits and losses, and all
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other records necessary for recording the Partnership's business and affairs,
including, without limitation, the following:
(a) a current list in alphabetical order of the full
name and last known business street address of each
Partner;
(b) a copy of the Certificate and all amendments thereto, together
with (i) receipts of filing thereof, and (ii) executed copies of any
powers of attorney pursuant to which any amendment has been executed;
(c) copies of the Partnership's federal, state and
local income tax returns and reports, if any, for the
three most recent years; and
(d) copies of the Partnership's financial statements, if any, for
the three most recent years.
Such books shall be maintained separate from those of any other Person. Each
Partner or its authorized representative shall have, upon reasonable advance
notice in writing, at reasonable times and at such Partner's expense, the right
to review and make copies of such books and records and to receive true and
complete information regarding Partnership matters to the extent required (and
subject to the limitations) under Delaware law; provided, however, that the
Managing General Partner may impose reasonable limitations on the access of any
other Partner to such books and records to protect against disclosure of
proprietary or competitively sensitive information or to comply with the
confidentiality restrictions imposed in any agreement to which the Partnership
is a party. The Partnership shall not impose any service, administrative or
other charge upon any Partner exercising its rights under this Section 7.08
except for payment of the Partnership's reasonable costs of photocopying and
postage.
7.09 Annual Audit and Accounting. The books and records of the
Partnership shall be kept on the accrual basis of accounting in accordance with
generally accepted accounting principles ("GAAP"). The Partnership's accounting
period shall be the calendar year. The accounts of the Partnership shall be
audited annually by a nationally recognized accounting firm of independent
public accountants selected by the Managing General Partner (the "Independent
Accountants"). Each Additional General Partner and its designees shall be
entitled to confer with the Managing General Partner and the Partnership's
Independent
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Accountants with respect to any and all tax matters that may affect such
Partner, including, without limitation, in the case of JMB Partner, allocations
of indebtedness as contemplated in Section 6.02 and subsection 7.11(e).
7.10 Reports; Notices.
(a) The books of account shall be closed promptly after the close of
each calendar year, and the Managing General Partner shall prepare and send to
each Partner:
(i) Within ninety (90) days after the end of the fiscal year, an
Internal Revenue Service Schedule K-1 with respect to its distributive
share of income, gains, deductions, losses and credits for income tax
reporting purposes for each such fiscal year, together with any other
information concerning the Partnership reasonably necessary for the
preparation of a Partner's income tax return(s);
(ii) Within forty (40) days after the end of each of the first three
(3) fiscal quarters, as of the last day of the fiscal quarter, a report
containing unaudited financial statements of the Partnership and such
other information as may be legally required or determined to be
appropriate by the Managing General Partner; and
(iii) Within ninety (90) days after the end of the fiscal year, as of
the close of the fiscal year, an annual report containing audited
financial statements of the Partnership, presented in accordance with GAAP
and certified by the Independent Accountants.
(b) Except during such periods as the Partnership shall be subject
to the reporting requirements of the Securities Exchange Act of 1934, as
amended, the Managing General Partner shall give prompt written notice to each
other Partner upon (i) the effectiveness of any amendment to this agreement,
(ii) the Managing General Partner's obtaining knowledge of any material default
by the Partnership or a Person Controlled by the Partnership in respect of any
financing secured by any Core Property or other material real property of the
Partnership or any Person Controlled by the Partnership, (iii) the Managing
General Partner's obtaining knowledge of any facts or circumstances that
constitute a dissolution of the Partnership, (iv) the issuance of any amount of
Class A Units or Additional Equity Interests (other than a de minimis amount),
any
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recapitalization, merger or consolidation transaction to which the Partnership
becomes or is contemplated to become a party, (v) the taking of any action at a
meeting of the Partners or by a written consent signed by less than all the
Partners and (vi) the Managing General Partner's obtaining knowledge of any
other event or circumstance that, in the reasonable judgment of the Managing
General Partner, would be of material importance to the Partners. During such
periods as the Partnership shall be subject to the reporting requirements of the
Securities Exchange Act of 1934, as amended, the Managing General Partner shall
cause the Partnership to provide the information contemplated in clause (i) of
this subsection 7.10(b) and such information and notices to the Partners as the
Partnership shall be required to provide thereunder or under any other
applicable securities laws.
7.11 Tax Matters.
(a) The Managing General Partner shall be the Tax Matters Partner of
the Partnership for federal income tax matters pursuant to Code Section
6231(a)(7)(A). The Tax Matters Partner shall cause to be prepared all federal,
state and local income tax returns required of the Partnership at the Partner-
ship's expense. The Tax Matters Partner shall represent the Partnership (at the
expense of the Partnership) in connection with all examinations of the affairs
of the Partnership by any federal, state or local tax authorities, including,
without limitation, any resulting administrative and judicial proceedings, and
may expend funds of the Partnership for professional services and costs
associated therewith. The Partners shall, to the extent reasonably requested by
the Tax Matters Partner, cooperate (in all reasonable respects) with each other
in connection with the conduct of all proceedings pursuant to this subsection
7.11(a). The Tax Matters Partner shall provide notice to all "Notice Partners"
as provided in the Code.
(b) The Tax Matters Partner shall receive no compensation for its
services in such capacity. If the Tax Matters Partner incurs any costs related
to any tax audit, declaration of any tax deficiency or any administrative
proceeding or litigation involving any Partnership tax matter, such amount shall
be an expense of the Partnership and the Tax Matters Partner shall be entitled
to full reimbursement therefor.
(c) Except as otherwise set forth in this agreement,
the Tax Matters Partner shall determine whether to make (and,
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if necessary, revoke) any tax election available to the Partnership under the
Code or any state or local tax law.
(d) In the event that Treasury Regulations are adopted to replace or
supplement, with an elective regime, the existing Treasury Regulations for
classifying certain business organizations, the Tax Matters Partner shall elect
that the Partnership be treated as a partnership for federal income tax purposes
and take such other appropriate actions as shall be prescribed thereunder
consistent with such election.
(e) If requested by JMB Partner, the Partnership shall adopt and
shall cause New 245 Park LP and/or its designee(s) to adopt the "remedial
allocation method" under Treasury Regulations Section 1.704-3, with respect to
245 Park Avenue. The Partnership shall not permit any such remedial allocation
to be revoked or withdrawn so long as the Partnership continues to own the
ultimate beneficial ownership in 245 Park Avenue. If such remedial allocation
method is adopted, the Partners intend that:
(i) JMB Partner's share of the Partnership's liabilities secured by
245 Park Avenue will be approximately $145,000,000 (assuming JMB's Section
704(c) book/tax difference is $155,000,000 upon consummation of the Plan)
and will be subsequently adjusted only for those reductions required under
the remedial allocation method under Treasury Regulations Section 1.704-3.
To the extent that such book/tax difference is a different amount on the
date of this agreement, JMB Partner's share of the Partnership's
liabilities will be adjusted as provided under applicable Treasury
Regulations.
(ii) In addition to the liabilities described in clause (i) above,
from and after the date of this agreement (in accordance with the remedial
allocation method under Treasury Regulations Section 1.704-3), JMB
Partner's share of the Partnership's Section 752 liabilities shall be
equal to the product of (A) the total amount of the Partnership's Section
752 liabilities described under Treasury Regulation Section 1.752-3(a)(3)
and (B) JMB Partner's Equity Interest in the Partnership, as adjusted to
reflect the terms of any Additional Equity Interests and expressed as a
percentage of the total outstanding Equity Interests (it being understood
that this subsection 7.11(e)(ii) is intended to provide for the allocation
to
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JMB Partner of its share of Partnership liabilities under Treasury
Regulations Section 1.752-3(a)(3)).
(iii) All of the liabilities described in clauses (i) and (ii) above
will constitute and be reported as "qualified nonrecourse financing"
within the meaning of Section 465(b)(6) of the Code. Based on existing law
and regulations, in preparing any income tax return of the Partnership,
JMB Partner and New 245 Park LP, the Partnership shall not include, and
shall cause New 245 Park LP not to include, and JMB Partner shall not
include, any attachment or any statement that indicates that there is more
than one activity for purposes of Section 465 of the Code.
7.12 Withholding of Certain Amounts.
(a) The Managing General Partner may (in addition to amounts that
may be withheld pursuant to Section 9.11) withhold, in its discretion, from any
distribution of cash or property in kind to any other Partner or its assignee,
upon notice to such Partner pursuant to this agreement, the following amounts:
(i) any amounts due from such Partner or assignee to
the Partnership or the Managing General Partner under this
agreement; and
(ii) any amounts required (x) for the payment of any taxes that the
Managing General Partner determines in good faith must be withheld by the
Partnership with respect to such Partner or assignee or (y) to pay or
reimburse the Managing General Partner for any advances made by the
Managing General Partner for such purpose.
(b) Any amounts withheld pursuant to this Section 7.12 shall be
applied by the Managing General Partner to discharge the obligation in respect
of which such amounts were withheld. All amounts distributable to any Partner or
assignee that are withheld pursuant to this Section 7.12 shall be treated as
amounts distributed to such Partner or assignee. To the extent that any amount
paid over (or required to be paid over) in satisfaction of any obligation
described in clause (i) or clause (ii) of subsection 7.12(a) exceeds the amount,
if any, actually withheld from a distribution that otherwise would have been
made to a Partner or assignee, such excess shall be treated as an interest-free
advance to such Partner or
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assignee, secured by such Partner's or assignee's Interest in the Partnership
(such loan, a "Withholding Advance"). Amounts treated as advanced to any Partner
or assignee pursuant to this Section 7.12 shall be repaid by such Partner or
assignee to the Partnership within thirty (30) Business Days after the Managing
General Partner gives notice to such Partner or assignee making demand therefor.
If any Partner or assignee of a Partner fails to pay a Withholding Advance as
provided in this subsection 7.12(b), the Partnership (without limiting any other
remedy that may be available to the Partnership) shall collect any unpaid
amounts from any Partnership distributions to such Partner or assignee that
otherwise would be made to such Partner or assignee and/or permanently adjust
the Interest of such Partner or assignee accordingly. Notwithstanding anything
to the contrary set forth herein, in the event of any failure by a Partner or
assignee to perform its obligations under this Section 7.12, in addition to all
other rights and remedies available hereunder or under applicable law to the
Partnership and the Managing General Partner, the Managing General Partner and
the Partnership shall have all the rights and remedies of a secured creditor
under the Uniform Commercial Code as in effect in the State of Delaware.
(c) If the Managing General Partner determines that the Partnership
would have insufficient funds (taking into account the cash needs of Persons
Controlled by the Partnership) to make a Withholding Advance, the Managing
General Partner shall be entitled to require the Partner for which the
withholding requirement applies to pay the amount of such withholding
requirement sufficiently in advance of the payment date to permit the
Partnership timely to satisfy its withholding tax liability.
ARTICLE 8 - COMPENSATION
8.01 No Entitlement to Compensation. No Partner acting on behalf of
the Partnership shall be entitled to compensation or remuneration from the
Partnership for acting as a Partner except as may be specifically provided in
this agreement. The provisions of this Section shall not limit any compensation
or remuneration that any Partner shall receive from any other Person with which
the Partnership may be an Affiliate or in which the Partnership is a participant
or partner.
8.02 Reimbursement. The Partnership shall reimburse
each General Partner for all reasonable and customary out-of-
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pocket expenses incurred by it in managing or otherwise acting on behalf of the
Partnership. If the Managing General Partner shall determine to engage the
services of a general manager or agent or advisor to provide management or
advisory or similar services to the Partnership, the reasonable and customary
fees and expenses of such manager, agent or advisor shall be paid by the
Partnership.
ARTICLE 9 - TRANSFERS
9.01 Certain Transfers Void. No Partner may make or permit to occur
any Transfer of all or any part of its Interest in the Partnership except in
accordance with the provisions of this Article 9. Any purported Transfer in
violation of this Article 9 shall not bind the remaining Partners, who may
continue to treat the original Partner as the owner of such Interest (or the
applicable portion thereof) for all purposes.
9.02 Certain Prohibitions on Transfers. Except with the prior
written consent of the Required Founding Limited Partners (which may be withheld
for any reason or no reason), no Partner shall make or permit to occur any
Transfer of all or any part of its Interest (other than a Transfer that does not
violate the provisions of Section 9.05, Section 9.08 or Section 9.09 and is (i)
required pursuant to Section 5.06 hereof, (ii) a Transfer to a Wholly Owned
Affiliate of such Partner, (iii) a Transfer by Dragon Partner to a Person within
the Dragon Control Group, or (iv) a Transfer of any Unrestricted Units that may
be owned by it) or enter into any contract therefor during the period commencing
on the date hereof and ending on the third anniversary of the date hereof.
Commencing after the third anniversary of the date hereof, without the consent
of any other Partner, each Partner may, at any time, subject only to the
provisions of Section 9.05, Section 9.08 and Section 9.09, make or permit to
occur any Transfer to any Person of all or any part of its Interest; provided,
however, that no assignee of a Partner (other than any assignee of Unrestricted
Units acquired in a transaction that complies with the provisions of Section
9.03) shall be admitted as a Partner of the Partnership except in compliance
with the provisions of Section 9.04. Without the consent of any other Partner,
each Partner that is the holder of Unrestricted Units may, at any time, subject
only to the provisions of Section 9.05, Section 9.08 and Section 9.09, make or
permit to occur any Transfer to any Person of all or any portion of such
Unrestricted Units.
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9.03 Transfers by Certain Partners. Upon any assignment by a Partner
of Unrestricted Units that does not violate the provisions of Section 9.05,
Section 9.08 or Section 9.09, the transferee thereof shall be admitted to the
Partnership as a Partner upon receipt of a Transfer Application with respect to
such Transfer by the Managing General Partner. Except as provided in subsection
4.02(e), each such transferee shall have all the rights as a Partner of the
Partnership that were possessed by its transferor.
9.04 Approval of Managing General Partner.
(a) Other than as set forth in Section 9.03, no assignee of all or
any part of a Partner's Interest (including, without limitation, an assignee
that is a non-United States Person) shall be admitted as a Partner without the
consent of the Managing General Partner, which consent may be withheld in the
sole and absolute discretion of the Managing General Partner; provided, however,
that if, at the time of any request for consent hereunder, the direct or
indirect beneficial Interest in the Partnership of the requesting Partner and
all its Affiliates shall exceed 50% of the aggregate Equity Interests in the
Partnership, no assignee of such Partner may be admitted as a Partner of the
Partnership unless non-transferring Partners (which may include non-transferring
Partners holding Unrestricted Units that decline to participate in a Tag-Along
Sale) holding aggregate Equity Interests constituting a majority in interest of
all non-transferring Partners shall consent thereto (which consent may be
withheld in their sole and absolute discretion). Pending an assignee's admission
as a substitute Partner of the Partnership, and upon receipt of written notice
by the Managing General Partner of the assignment, such assignee shall be
entitled to share in all allocations and distributions of the Partnership
(including, without limitation, liquidating distributions) on the same basis as
the Partner from which such assignee obtained its Interest. Unless and until
such assignee is admitted as a substitute Partner, such assignee shall not be
entitled to exercise any other rights of a Partner, including, without
limitation, the right to vote (to the extent such right was available to such
assignee's predecessor) on any matter submitted to the Partners for approval,
and such predecessor shall retain the right, if any, to vote the Interest so
assigned.
(b) The restriction on substitution with respect to assignees
contained in this Section 9.04 shall be of no further force or effect if (i)
Treasury Regulations are adopted to
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replace or supplement, with an elective regime, the existing Treasury
Regulations for classifying certain business organizations, (ii) any required
elections are made thereunder to treat the Partnership as a partnership for
federal income tax purposes and (iii) the elimination of such restriction does
not (in the reasonable judgment of the Managing General Partner) adversely
affect the partnership status of the Partnership from its inception.
9.05 Certain Prohibited Transfers.
(a) No Partner shall assign all or any part of its Interest to any
Person that is not a "United States person" within the meaning of section
7701(a)(30) of the Code, without the prior written consent of the Managing
General Partner, which consent shall be granted if (i) such Person can
demonstrate, to the reasonable satisfaction of the Managing General Partner, its
ability to satisfy its potential liabilities for any withholding tax that may be
imposed on its pro rata share of the Partnership's income and (ii) the Managing
General Partner determines that the withholding obligations to which the
Partnership reasonably may be expected to be subject as a result of the
ownership of such Interest by such assignee, when taken together with such
withholding obligations with respect to all other Interests held by non-United
States persons, would not have a material adverse effect on the ability of the
Partnership and Persons Controlled by it to satisfy their debt service
requirements and other contractual obligations and operational requirements.
Notwithstanding the foregoing, the Managing General Partner shall provide the
consent contemplated in this subsection 9.05(a) in respect of (A) the assignment
by Coopers & Lybrand OYDL of any Class A Units received by it to the Class 28
creditors of Olympia & York Developments Limited, pursuant to the provisions of
the Plan of Arrangement of Olym- pia & York Developments Limited, et al. filed
under the Compa- nies' Creditors Arrangement Act, (B) any request by JMB Partner
to assign all or any part of its Class A Units to a JMB Controlled Affiliate or
the members of JMB Partner and (C) any request by JMB (as a substituted Partner
or assignee of JMB Partner following any assignment described in the immediately
preceding clause (B)) to assign all or any part of its Class A Units to its
partners and (D) any assignment by the Disbursing Agent (as defined in the Plan)
made pursuant to Section 20.4 of the Plan.
(b) No assignment of all or any part of any Interest
shall be effective without the approval of the Managing General
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Partner if the Interest sought to be assigned, when added to the total of all
other Interests assigned (or approved for assignment), would result in a
"termination" of the Partnership under section 708 of the Code. The Managing
General Partner shall give notice to all other Partners in the event that sales
or exchanges should be suspended for such reason. Any sales or exchanges
deferred by reason of any such determination by the Managing General Partner
shall be made in chronological order to the extent practicable commencing on
such date as shall be determined by the Managing General Partner.
Notwithstanding anything to the contrary contained in this agreement, the
Founding Limited Partners shall not, prior to the date that is six months after
the date of this agreement, make any assignments of all or any part of their
Interests that would cause any delay in the ability of a Limited Partner to
assign any Unrestricted Units or a delay in the ability of the Disbursing Agent
to make any distributions required pursuant to Section 20.4 of the Plan.
(c) No Transfer by the Managing General Partner shall be permitted
that would cause the Managing General Partner to have less than a 1% interest in
the capital of, and in all items of income, gain, loss, deduction and credit of,
the Partnership.
(d) No assignment of all or any part of an Interest (other than an
assignment of Unrestricted Units) may be made if such assignment would result in
the Partnership being treated as a corporation for tax purposes.
(e) No assignment of all or any part of an Interest representing
more than 6% of the total Equity Interest or the total Additional Equity
Interests (of any class or series) may be made or effective unless the
Partnership shall have been given notice thereof not less than five (5) Business
Days prior to the effective date of such assignment.
9.06 Successor Managing General Partner; Removal of
Managing General Partner.
(a) Upon the occurrence of an event described in
subsection 10.01(c), the Managing General Partner shall (i)
remain liable for all obligations and liabilities (other than
Partnership liabilities payable solely from Partnership assets)
incurred by it as a General Partner before the effective date
of such event and (ii) pay all costs associated with the admis-
sion of its successor Managing General Partner. The Managing
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General Partner shall be free of and held harmless by the Partnership against
any obligation or liability incurred on account of the activities of the
Partnership from and after the effective date of such event.
(b) A successor to all of the Managing General Part- ner's Interest
that is proposed to be admitted to the Partnership as a successor Managing
General Partner shall be admitted as the Managing General Partner, effective
upon the assignment of such Interest to such proposed successor, upon the
approval of Partners (the "Required Partners") constituting (i) the Required
Founding Limited Partners and (ii) the holders of not less than 75% of all the
Equity Interests and 75% of all Additional Equity Interests (if any are then
outstanding). Any such assignee shall carry on the business of the Partnership
without dissolution. Prior to its admission to the Partnership, such assignee
shall have provided to the Partners such information as to the identity of its
Affiliates and its finances and business and those of its Affiliates as may be
reasonably requested in writing by any Partner. In connection with the admission
of such assignee to the Partnership, such assignee shall agree in writing to be
bound by all the terms and provisions of this agreement.
(c) The Managing General Partner may be removed and a replacement
Managing General Partner admitted to the Partnership upon the affirmative vote
of the Required Partners; provided, however, that the rights of the Partners
under this subsection (c) to remove the Managing General Partner and elect a
replacement therefor shall not be effective unless and until (i) the Partnership
has received an opinion of counsel, which counsel is satisfactory to a majority
in interest of the Limited Partners, as to the legality of such action, and (ii)
either (A) the Partnership has received an opinion of counsel, which counsel is
satisfactory to the Required Partners, that such action may be effected without
subjecting any of the Limited Partners to liability as general partners under
the Act or under the laws of such other jurisdictions in which the Partnership
is formed, re-formed, re-organized or otherwise qualified, or (B) a Delaware
court having original jurisdiction in the premises has entered a judgment which
has become final to the foregoing effect as to the Act and an opinion of counsel
as provided above has been obtained as to the laws of such jurisdictions, other
than Delaware, in which the Partnership is formed, re-formed, re-organized or
otherwise qualified.
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9.07 Successor Partners. In the event of a Bankruptcy of a Limited
Partner, the bankruptcy trustee or administrator of such Limited Partner shall
succeed to its Interest. If an individual Limited Partner dies, his executor or
administrator shall succeed to his Interest. If a Limited Partner that is a
natural Person shall be adjudicated insane, incompetent or incapacitated, his
committee, guardian or conservator shall succeed to his Interest.
9.08 Tag-Along Provisions.
(a) If at any time any Partner alone or together with any other
Partners (such Partner or Partners, "Tag-Along Sellers") propose to enter into
an agreement (or substantially contemporaneous agreements, whether or not with
the same or affiliated parties) to sell or otherwise dispose of for value to any
Person or Group, other than, in each case, a Wholly Owned Affiliate of such
Partner or Partners (a "Tag-Along Purchaser"), a Majority Interest in one or
more related transactions (such sale or other disposition for value being
referred to as a "Majority Tag-Along Sale"), then such Tag-Along Sellers shall
afford each other Partner that owns any Unrestricted Units (each, individually,
a "Tag-Along Partner" and, collectively, the "Tag-Along Partners") the
opportunity to participate proportionately with respect to its Unrestricted
Units in such Majority Tag-Along Sale in accordance with the provisions of this
Section 9.08. If at any time any Tag-Along Sellers propose to enter into an
agreement (or substantially contemporaneous agreements, whether or not with the
same or affiliated parties) to sell or otherwise dispose of for value to any
Tag- Along Purchaser a Qualifying Interest in one or more related transactions
(such sale or other disposition for value being referred to as a "Qualifying
Tag-Along Sale"), then such Tag- Along Sellers shall afford each of (i) JMB
Partner (but only if the Equity Interest of JMB Partner, as of the close of
business on the day immediately prior to the Tag-Along Notice Date (as
hereinafter defined) has not fallen below 40% solely by reason of an issuance of
Class A Units or Additional Equity Interests occurring after the date hereof)
and (ii) each other Tag-Along Partner holding as of the close of business on the
day immediately prior to the Tag-Along Notice Date Unrestricted Units
representing at least 4% of the total Equity Interests then outstanding the
opportunity to participate proportionately in such Qualifying Tag-Along Sale in
accordance with the provisions of this Section 9.08; provided, however, that if
any Partner shall have at any time exercised its tag-along rights pursuant to
the provisions of this Section 9.08, such
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exercise(s) resulting in the sale or disposition of a portion, but not all, of
such Partner's Unrestricted Units, such Partner shall thereafter continue to be
entitled to exercise its tag- along rights with respect to its remaining
Unrestricted Units in connection with any subsequent Qualifying Tag-Along Sale
notwithstanding that, as of the close of business on the day immediately prior
to the Tag-Along Notice Date relating to such subsequent Qualifying Tag-Along
Sale, such Partner does not own Unrestricted Units representing at least 4% of
the total Equity Interests then outstanding; and provided, further, that in
negotiating a Tag-Along Sale, the Tag-Along Sellers shall provide that no
Tag-Along Partner shall be required to make any representation, covenant or
warranty in connection with the Tag-Along Sale, other than representations and
warranties as to its valid existence and its ownership, authority and agreement
to sell, free of liens, claims, encumbrances or any right of set off, the
Unrestricted Units proposed to be sold by it.
(b) The relevant Tag-Along Sellers shall provide each Tag-Along
Partner entitled to participate in such Tag- Along Sale pursuant to the
provisions of subsection 9.08(a) hereof and the Managing General Partner with
written notice (the "Tag-Along Sale Notice") not more than sixty (60) days nor
less than twenty (20) days prior to (the date of such Tag-Along Sale Notice
being the "Tag-Along Notice Date") the proposed date of the Tag-Along Sale (the
"Tag-Along Sale Date"). Each Tag-Along Sale Notice shall be accompanied by a
copy of any written agreement relating to the Tag-Along Sale (redacted to the
extent necessary to comply with any applicable confidentiality restriction but
not so as to eliminate any information otherwise required to be provided below)
and shall set forth: (i) the name and address of each proposed Tag-Along
Purchaser of Equity Interests in the Tag-Along Sale, (ii) the total percentage
of Equity Interests (computed on a basis that assumes all then outstanding
Convertible Notes (exclusive of any accrued interest in respect thereof) have
been converted into Class A Units) proposed to be Transferred by such Tag-Along
Sellers (the "Original Sale Percentage"), (iii) the proposed amount of
consideration to be paid for such Equity Interests, which consideration may only
be paid in cash, and the terms and conditions of payment offered by each
proposed Tag-Along Purchaser, (iv) the Tag-Along Sale Date and (v) the name and
address of each Tag-Along Seller.
(c) Any Tag-Along Partner entitled to participate in the relevant
Tag-Along Sale pursuant to the provisions of subsection 9.08(a) hereof wishing
to participate in the Tag-Along
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Sale shall provide written notice (the "Tag-Along Notice") to the relevant
Tag-Along Sellers no less than five (5) Business Days prior to the Tag-Along
Sale Date. The Tag-Along Notice shall set forth the maximum number of Class A
Units that such Tag-Along Partner elects to include in the Tag-Along Sale. The
Tag-Along Notice given by any Tag-Along Partner shall constitute such Tag-Along
Partner's binding agreement (subject only to receipt of any necessary consent
pursuant to subsection 9.05(b)) to sell the Unrestricted Units specified in the
Tag- Along Notice on the terms and conditions applicable to the Tag- Along Sale;
provided, however, that in the event that there is any material change in the
terms and conditions of such Tag- Along Sale applicable to the Tag-Along Partner
(including, without limitation, any decrease in the purchase price that occurs
other than pursuant to an adjustment mechanism set forth in the agreement
relating to the Tag-Along Sale or any failure to consummate the Tag-Along Sale
within ninety (90) days after the Tag-Along Sale Date) after such Tag-Along
Partner gives its Tag-Along Notice, then, notwithstanding anything herein to the
contrary, the Tag-Along Partner shall have the right to withdraw from
participation in the Tag-Along Sale with respect to all of its Unrestricted
Units affected thereby. If the proposed Tag-Along Purchaser does not agree to
consummate the purchase for cash consideration of all of the Unrestricted Units
requested to be included in the Tag-Along Sale by the Tag-Along Partners on the
same terms and conditions applicable to the proposed purchase of the Original
Sale Percentage of the Tag- Along Sellers, then such Tag-Along Sellers shall not
consummate the Tag-Along Sale of any of their Equity Interests to such Tag-Along
Purchaser unless the number of Class A Units of each Tag-Along Partner to be
purchased by the Tag-Along Purchaser in such Tag-Along Sale shall not be reduced
below the Adjusted Tag-Along Amount in respect thereof, and all other terms and
conditions of the Tag-Along Sale are the same for such Tag- Along Sellers and
the Tag-Along Partners (except as otherwise provided in the last proviso to
subsection 9.08(a)).
If a Tag-Along Notice from any Tag-Along Partner is not given by
such Tag-Along Partner no less than five (5) Business Days prior to the Tag
Along Sale Date period specified above, such Tag-Along Sellers shall have the
right to consummate the Tag-Along Sale without the participation of such Tag-
Along Partner, but only on terms and conditions which are no more favorable in
any material respect to such Tag-Along Sellers (and in any event, at no greater
a purchase price, except as the purchase price may be adjusted pursuant to the
agreement relating to the relevant Tag-Along Sale) than as stated in the
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Tag-Along Sale Notice and only if such Tag-Along Sale is consummated on a date
within sixty (60) days of the Tag-Along Sale Date. If such Tag-Along Sale is not
consummated within such sixty (60) day period, the Equity Interests that were to
be subject to such Tag-Along Sale thereafter shall continue to be subject to all
of the restrictions contained in this Section 9.08.
(d) On the date of closing of a Tag-Along Sale, each Tag-Along
Partner shall deliver such documentation, certificates or other instruments with
respect to the Unrestricted Units to be sold by it in connection with the
Tag-Along Sale as may be reasonably required for the Transfer of such
Unrestricted Units to the relevant Tag-Along Purchaser, against delivery of the
purchase price for such Unrestricted Units (net of any amounts of federal or
state taxes such Tag-Along Purchaser is required by law to withhold from such
purchase price).
(e) If, by reason of the operation of subsection 9.05(b), the
Transfer of any Unrestricted Units to be sold as part of a Tag-Along Sale is
deferred and the Tag-Along Purchaser in respect of such Tag-Along Sale agrees to
consummate such Tag-Along Sale in stages, each Tag-Along Partner participating
in such Tag-Along Sale shall be entitled to Transfer to the Tag-Along Purchaser
a pro rata portion (based on the respective amounts of Class A Units to be sold
in such Tag-Along Sale by such Tag-Along Partner and all other Partners) of its
Unrestricted Units at each time that the Selling Partner Transfers any of its
Class A Units to such Tag-Along Purchaser.
(f) The closing of any Transfer of any Unrestricted Units pursuant
to this Section 9.08 shall take place at the offices of the Partnership (or at
such other location as shall reasonably be designated by the Managing General
Partner) concurrently with the closing of any sale by the Tag-Along Sellers to
the Tag-Along Purchaser.
9.09 Transfers Must Comply with Laws. Notwithstanding any contrary
provision herein, no Partner may Transfer or offer to Transfer all or any part
of its Interest (or solicit any offers to Transfer any Interest), and no
Transfer, offer to Transfer or solicitation of offers to Transfer all or any
part of its Interest otherwise permitted hereunder shall be permitted, if such
Transfer offer or solicitation would violate the registration requirements of
the Securities Act of 1933, as
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amended, and rules and regulations promulgated thereunder or the registration
requirements of any applicable state securities laws and rules and regulations
promulgated thereunder.
9.10 Assumption by Transferee. Except as otherwise provided in
Section 9.03, the admission of any Person as a Partner of the Partnership under
Section 9.04 shall be conditioned on such Person executing documents reasonably
required by the Managing General Partner for such Person to assume the
obligations of its transferor hereunder.
9.11 Remedies for Impermissible Transfer. Without limiting any other
remedies available to the Partnership or any of the other Partners, upon any
breach by a Partner of its obligations under this Article 9, the Managing
General Partner may, and, upon written demand of Partners owning Equity
Interests aggregating at least 20% of all the Equity Interests in the
Partnership, shall, so long as any breach by such Partner of its obligations
under such Article shall be continuing, withhold distributions of Available
Funds to such Partner.
9.12 Certificates. Upon the Partnership's issuance of any Class A
Units to any Person, the Partnership shall issue one or more Unit Certificates
in the name of such Person evidencing the number of such Class A Units being so
issued. Unit Certificates shall be executed on behalf of the Partnership by the
Managing General Partner. No Unit Certificate shall be valid for any purpose
until it has been countersigned by the Transfer Agent.
9.13 Mutilated, Destroyed, Lost or Stolen Unit
Certificates.
(a) If any mutilated Unit Certificate is surrendered to the Transfer
Agent, the Managing General Partner shall execute, and the Transfer Agent shall
countersign and deliver in exchange therefor, a new Unit Certificate evidencing
the same number of Class A Units as the Unit Certificate so surrendered.
(b) The Managing General Partner shall execute, and the Transfer
Agent shall countersign and deliver a new Unit Certificate in place of any Unit
Certificate previously issued if the Record Holder of the Unit Certificate:
(i) makes proof by affidavit, in form and sub-
stance satisfactory to the Managing General Partner, that
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a previously issued Unit Certificate has been lost,
destroyed or stolen;
(ii) requests the issuance of a new Unit Certificate before the
Partnership has notice that the Unit Certificate has been acquired by a
purchaser for value in good faith and without notice of an adverse claim;
(iii) if requested by the Partnership, delivers to the Managing
General Partner a bond, in form and substance satisfactory to the Managing
General Partner, with surety or sureties and with fixed or open penalty as
the Managing General Partner may reasonably direct, in its sole
discretion, to indemnify the Partnership, the Partners and the Transfer
Agent against any claim that may be made on account of the alleged loss,
destruction or theft of the Unit Certificate; and
(iv) satisfies any other reasonable requirements
imposed by the Managing General Partner.
(c) As a condition to the issuance of any new Unit Certificate under
this Section 9.13, the Partnership may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including, without limitation, the fees and
expenses of the Transfer Agent) reasonably connected therewith.
9.14 Record Holders. The Partnership shall be entitled to recognize
the Record Holder as the Partner or assignee of a Partner with respect to any
Interest and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such Interest on the part of any other Person,
regardless of whether the Partnership shall have actual or other notice thereof,
except as otherwise provided by law or any applicable rule, regulation,
guideline or requirement of any national securities exchange on which the Class
A Units may be listed for trading. Without limiting the foregoing, when a Person
(such as a broker, dealer, bank, trust company or clearing corporation or an
agent of any of the foregoing) is acting as nominee, agent or in some other
representative capacity for another Person in acquiring and/or holding Class A
Units, as between the Partnership on the one hand, and such other Persons on the
other, such representative Person (i) shall be the Partner or assignee of a
Partner (as the case may be) of record and beneficially, and (ii) shall be bound
by this agreement and
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shall have the rights and obligations of a Partner or assignee of a Partner (as
the case may be) hereunder and as provided for herein. The foregoing provisions
of this Section 9.14 shall not affect the meaning or interpretation of any other
provision of this agreement that refers to "indirect" or "beneficial" ownership.
9.15 Registration of Transfer of Class A Units.
(a) The Partnership shall keep or cause to be kept on behalf of the
Partnership a register in which, subject to such reasonable regulations as it
may prescribe, the Partnership will provide for the registration of Transfers of
Class A Units. The Transfer Agent is hereby appointed registrar and transfer
agent for the purpose of registering Class A Units and Transfers of Class A
Units as herein provided. The Partnership shall not recognize Transfers of Unit
Certificates representing Class A Units unless such Transfers are effected in
the manner described in this Section 9.15. Upon surrender for registration of
transfer of any Class A Units evidenced by a Unit Certificate, and subject to
the provisions of subsection 9.15(b), the Managing General Partner shall
execute, and the Transfer Agent shall countersign and deliver, in the name of
the holder or the designated transferee or transferees, as required pursuant to
the holder's instructions, one or more new Unit Certificates evidencing the same
aggregate number of Class A Units as was evidenced by the Unit Certificate so
surrendered.
(b) Except as otherwise provided in Section 9.14, the Partnership
shall not recognize any Transfer of Class A Units until the Unit Certificates
evidencing such Class A Units are surrendered for registration of Transfer and
such Unit Certificates are accompanied by a Transfer Application duly executed
by the transferee (or the transferee's attorney-in-fact duly authorized in
writing). Each Unit Certificate surrendered for registration of Transfer shall
be cancelled by the Transfer Agent. No charge shall be imposed by the
Partnership for such Transfer; provided, however, that as a condition to the
issuance of any new Unit Certificate under this Section 9.15, the Partnership
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed with respect thereto.
(c) A transferee who has completed and delivered a Transfer
Application shall be deemed to have (i) requested admission to the Partnership
as a Limited Partner (unless its transferor is a General Partner, it elects in
writing to be a
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General Partner and, pursuant to all applicable provisions of this agreement
(including, without limitation, the provisions of subsection 4.02(e), such
transferee is entitled to be admitted as a General Partner), (ii) agreed to be
bound by this agreement as a Limited Partner or (if such transferee has made an
election as contemplated in clause (i) above) General Partner having the same
obligations hereunder as were held by its transferor; provided, however, that no
such transferee shall be bound by any amendment to this agreement of the
character described in the first proviso to subsection 11.01(b) unless such
amendment was approved by its transferor, (iii) represented and warranted that
such transferee has the right, power and authority and, if a natural Person, the
capacity to enter into this agreement, and (iv) granted the powers of attorney
set forth in this agreement.
ARTICLE 10 - DISSOLUTION AND TERMINATION
10.01 Events of Dissolution. The Partnership shall continue until
December 31, 2095 unless sooner dissolved by:
(a) the affirmative vote of Partners constituting (i) the Required
Founding Limited Partners and (ii) the holders of not less than two-thirds of
all the Equity Interests then outstanding and not less than two-thirds of all
Additional Equity Interests then outstanding (if any);
(b) any event which makes it unlawful for the busi-
ness of the Partnership to be carried on by the Partners;
(c) the death, withdrawal, retirement, resignation, expulsion,
Bankruptcy, liquidation or dissolution of the Managing General Partner or the
occurrence of any other event that terminates the continued membership of the
Managing General Partner as a general partner of the Partnership; provided,
however, that the Managing General Partner shall neither withdraw, retire or
resign from the Partnership nor liquidate, dissolve or effect or permit any act
or event constituting the Bankruptcy of the Managing General Partner, in each
case unless a successor managing general partner shall have been, or
contemporaneously is being, admitted to the Partnership in accordance with
Section 10.02 of this agreement;
(d) the death, withdrawal, retirement, expulsion, Bankruptcy,
liquidation, or dissolution of any Additional General Partner or the occurrence
of any other event that
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terminates the continued membership of any Additional General Partner as a
general partner of the Partnership, unless at the time there is a Managing
General Partner (it being understood that, if there is a Managing General
Partner existing at the time of any such event, the Managing General Partner
shall carry on the business of the Partnership and the Partnership shall not be
dissolved, with the result that, in such circumstances, action pursuant to
Section 10.02 hereof shall not be necessary to continue the business of the
Partnership);
(e) the entry of a decree of judicial dissolution of
the Partnership under the Act; or
(f) the sale, exchange or other disposition of all
or substantially all of the Partnership's assets.
10.02 Continuance of the Partnership. Notwithstanding the provisions
of Section 10.01, upon the occurrence of an event described in subsection
10.01(c) or (if, at the applicable time, there shall be no Managing General
Partner) subsection 10.01(d) hereof, the remaining Partners shall have the right
to continue the business of the Partnership. Such right may be exercised only by
the affirmative vote of the Required Partners, within 90 days after the
occurrence of an event described in subsection 10.01(c) or (if, at the
applicable time, there shall be no Managing General Partner) subsection 10.01(d)
hereof, to continue the business of the Partnership and the selection of a
successor Managing General Partner under the terms of Section 9.06. If not so
exercised, the right of the Partners to continue the business of the Partnership
shall expire and the Partnership's affairs shall be wound up as provided in
Section 10.03.
10.03 Liquidation of Partnership Assets.
(a) Subject to the provisions of subsection 10.03(e), in the event
of dissolution pursuant to Section 10.01, the Partnership shall continue solely
for purposes of winding up the affairs of, achieving a final termination of, and
satisfaction of the creditors of, the Partnership. The Managing General Partner
(or, if there is no Managing General Partner remaining, any Person elected by
the affirmative vote of Partners constituting (i) the Required Founding Limited
Partners and (ii) the holders of not less than two-thirds of all the Equity
Interests then outstanding and not less than two-thirds of all Additional Equity
Interests (if any) then outstanding (the "Liquidator")) shall be responsible for
<PAGE>
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oversight of the winding up and dissolution of the Partnership. The Liquidator
shall obtain a full accounting of the assets and liabilities of the Partnership
and such Partnership assets shall be liquidated as promptly as the Liquidator is
able to do so without any undue loss in value, with the proceeds therefrom
applied and distributed in the following order:
(1) First, to the discharge of Partnership debts and liabilities
to creditors, including (to the extent permitted by law)
creditors that are Partners;
(2) Second, to the discharge of Partnership debts
and liabilities to the Partners (to the extent
not covered in clause (1) above);
(3) The balance, if any, except as provided in the last sentence
of subsection 4.03(a), to the Partners in proportion to their
Equity Interests, as adjusted to reflect the terms of any
Additional Equity Interests (it being understood that the
distributions contemplated by this clause (3) in respect of
any Class A Unit shall be the same as the distribution in
respect of each other Class A Unit).
(b) In accordance with the provisions of subsection 10.03(a), the
Liquidator shall proceed without any unnecessary delay to sell and otherwise
liquidate the Partnership assets; provided, however, that if the Liquidator
shall determine that an immediate sale of part or all of the Partnership assets
would cause undue loss to the Partners, the Liquidator may defer the liquidation
except (i) to the extent provided by the Act or (ii) as may be necessary to
satisfy the debts and liabilities of the Partnership to Persons other than the
Partners (but only in their capacities as Partners).
(c) If, in the sole and absolute discretion of the Liquidator, there
are Partnership assets that the Liquidator will not be able to liquidate, or if
the liquidation of such assets would result in undue loss to the Partners, the
Liquidator may distribute such Partnership assets to the Partners in-kind, in
lieu of cash, as tenants-in-common (each having an interest therein
proportionate to its Equity Interest, as adjusted to reflect the terms of any
Additional Equity Interests owned by such Partner, it being understood that the
distributions contemplated by this subsection (c) in respect of
<PAGE>
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any Class A Unit shall be the same as such distributions in respect of each
other Class A Unit)) in accordance with the provisions of subsection 10.03(a).
The foregoing notwithstanding, such in-kind distributions shall only be made if
in the Liquidator's good faith judgment that is in the best interest of the
Partners.
(d) Upon the complete liquidation and distribution of the
Partnership assets, the Partners shall cease to be Partners of the Partnership,
and the Liquidator shall execute, acknowledge and cause to be filed all
certificates and notices required by law to terminate the Partnership. Upon the
dissolution of the Partnership pursuant to Section 10.01, the Liquidator shall
cause to be prepared, and shall furnish to each of the Partners, a statement
setting forth the assets and liabilities of the Partnership. Promptly following
the complete liquidation and distribution of the Partnership assets, the
Liquidator shall furnish to each Partner a statement showing the manner in which
the Partnership assets were liquidated and distributed.
10.04 Time for Winding-Up. Anything in this Article 10
notwithstanding, a reasonable time shall be allowed for the orderly winding-up
of the business and affairs of the Partnership and the liquidation of the
Partnership assets in order to minimize any potential for losses as a result of
such process. During the period of winding-up, this agreement shall remain in
full force and effect and shall govern the rights and relationships of the
Partners inter se.
ARTICLE 11 - GENERAL PROVISIONS
11.01 Entire Agreement; Amendments and Waivers.
(a) This agreement contains the entire agreement among the parties
and supersedes all prior written or oral agreements among them respecting the
subject matter hereof. Without limiting the generality of the immediately
preceding sentence, in the event of any inconsistency between the Plan and this
agreement, the provisions of this agreement shall govern.
(b) Except for amendments authorized under subsection 11.01(c), this
agreement may not be amended without the approval in writing of Partners
constituting (i) the Managing General Partner and the Required Founding Limited
Partners and
<PAGE>
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(ii) the holders of not less than two-thirds of all the Equity Interests then
outstanding and not less than two-thirds of all Additional Equity Interests (if
any) then outstanding; provided, however, that no amendment hereunder that has
the effect of (A) amending this subsection 11.01(b) or subsection 11.01(c) or
the definition of any term used in this subsection 11.01(b) or subsection
11.01(c), (B) amending subsection 11.08(b), (C) converting all or any part of a
Limited Partner's Interest into a general partner interest, (D) imposing any
personal liability on any Limited Partner or (E) altering the Equity Interest of
any Partner (other than pursuant to subsection 7.12(b)) shall be effective
against such Partner without such Partner's written consent thereto; and
provided, further, that, until the Public Market Effective Date, without the
written consent of the Required Unrestricted Unitholders, no amendment hereto
may have the effect of (1) impairing any Partner's rights under Section 9.08,
(2) amending Article 6 or the definition of any term used in Article 6, (3)
amending Section 9.03 or otherwise imposing (except as may hereafter be required
by virtue of any change in applicable law) any additional restrictions on the
Transfer of any Unrestricted Units, (4) amending the last sentence of subsection
9.05(b), (5) amending the definition of Unrestricted Units or the definition of
any term used in such definition, (6) amending Article 5, (7) providing
additional exculpations or greater rights of indemnification of any General
Partner, (8) amending the definition of Unit Value, the proviso to the second
sentence of subsection 4.02(a) or the proviso at the end of subsection 4.02(a),
(9) amending Sections 7.07 through 7.10, (10) amending the proviso to subsection
7.05(b), (ll) amending the last sentence of subsection 9.05(a), (12) amending
the definition of Public Market Effective Date or the definition of Related
Person or (13) amending the definition of any term used in the articles,
sections or provisions referred to in the preceding clauses (1) through (12). In
addition, until the occurrence of a JMB Disqualification Event, without the
written consent of JMB Partner, no amendment hereto shall have the effect of
amending (v) subsection 4.02(e), (w) the last sentence of subsection 6.02(a),
(x) the last sentence of Section 7.09, (y) subsection 7.11(e) or (z) the last
sentence of subsection 9.05(a).
(c) In addition to any amendments otherwise authorized herein,
amendments may be made to this agreement from time to time by the Managing
General Partner, without the consent of any of the other Partners, (i) to add to
the duties or obligations of the Managing General Partner or surrender any right
or power granted to the Managing General Partner herein,
<PAGE>
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for the benefit of the other Partners, (ii) to cure any ambiguity, to correct or
supplement any provision herein that may be inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this agreement that will not be inconsistent with the
provisions of this agreement, (iii) to reflect the conversion to Class A Units
of any Class B Units, (iv) to reflect the cancellation of any Class B Units as
contemplated in Section 4.03, (v) to amend Schedule I hereto to reflect the
addition or substitution of Partners, (vi) to adjust the Equity Interest of a
Partner pursuant to subsection 7.12(b), (vii) to admit any Additional General
Partner or provide for rights and obligations of such Additional General Partner
in accordance with the provisions of subsection 4.02(c) or to convert all or any
part of the Interest of any Additional General Partner into a limited
partnership Interest pursuant to the provisions of subsection 4.02(d) or (viii)
to document the issuance of Class A Units or Additional Equity Interests
pursuant to Section 4.02 or any exercise of the Conversion Right or any similar
conversion right; provided, however, that no amendment made pursuant to this
subsection 11.01(c) shall (x) have any of the effects referred in (A) either of
the provisos to the first sentence of subsection 11.01(b) or (B) the last
sentence of subsection 11.01(b).
(d) No Partner may be charged with any waiver of its rights
hereunder unless such waiver shall be in writing signed by such Partner.
11.02 Appointment of Attorney or Agent.
(a) Each Partner by its execution hereof or any assumption
instrument contemplated in Section 9.10 does irrevocably constitute and appoint
the Managing General Partner (which term shall include the Liquidator, in the
event of a liquidation, for purposes of this Section 11.02) as attorney-in-fact
with full power of substitution, as its true and lawful attorney, in its name,
place and stead (but solely in such Partner's capacity as a Partner) to make,
execute, acknowledge, swear to and file in the appropriate public offices (i)
the Certificate, (ii) all amendments to this agreement or to the Certificate
required by law or authorized or required by the provisions of this agreement or
the Certificate, (iii) all certificates and other instruments necessary to
qualify or continue the Partnership as a limited partnership in the states or
countries where the Partnership is doing or intends to do business, (iv) any
other instrument which may be required to be
<PAGE>
-57-
filed by the Partnership under the laws of any state or governmental agency, or
which the Managing General Partner deems advisable to file, and (v) all
conveyances and other instruments necessary to effect the continuation of the
Partnership or the admission, withdrawal or substitution of any Partner pursuant
to Article 9 or to effect the Partnership's dissolution and termination pursuant
to Article 10; provided, however, that the provisions of this Section 11.02
shall not be construed to authorize the taking of any action that would cause
any Limited Partner to have any personal liability.
(b) The powers of attorney granted herein shall be deemed to be
coupled with an interest and shall be irrevocable and survive the dissolution,
death or incompetency of the Partners. In the event of any conflict between this
agreement and any instruments executed or filed by such attorney pursuant to the
power of attorney granted in this Section 11.02, this agreement shall control.
11.03 Construction. The singular shall be deemed to include the
plural and vice versa. Accounting terms used herein have the meanings provided
therefor under GAAP.
11.04 Governing Law. This agreement is governed by
and shall be construed in accordance with the law of the State
of Delaware.
11.05 Further Assurances. The parties agree to execute and deliver
all such documents, provide all such information and take or refrain from taking
any action as may be necessary or desirable to achieve the purposes of this
agreement and the Partnership.
11.06 Titles and Captions. All articles or section titles or
captions in this agreement are solely for convenience and shall not be deemed to
be part of this agreement or otherwise define, limit or extend the scope or
intent of any provision hereof.
11.07 Binding Agreement. This agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto, and their respective heirs,
executors, personal representatives, successors and permitted assigns.
<PAGE>
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11.08 Waiver of Partition; Appraisal Rights.
(a) Each of the parties hereto irrevocably waives during the term of
the Partnership any right that it may have to maintain any action for partition
with respect to any property of the Partnership.
(b) The Limited Partners and JMB Partner shall have, in respect of
the Class A Units only, the appraisal rights contemplated in Section 17-212 of
the Act to the same extent as would be available to a shareholder of a
corporation organized under the laws of the State of Delaware.
11.09 Counterparts and Effectiveness. This agreement may be executed
in several counterparts, which shall be treated as originals for all purposes,
and as so executed shall constitute one agreement, binding on all of the parties
hereto, notwithstanding that all the parties are not signatory to the original
or the same counterpart. Any such counterpart shall be admissible into evidence
as an original hereof against each Person who executed it. The execution of this
agreement and delivery thereof by facsimile shall be sufficient for all
purposes, and shall be binding upon any party who so executes.
11.10 Waiver of Trial by Jury. Each Partner, by its execution and
delivery of this agreement, waives any and all rights it may have to trial by
jury of any matter, cause, dispute or other claim arising under this agreement
or otherwise relating to the Partnership.
11.11 Notices. All notices required or desired to be given to a
Partner or an assignee of a Partner shall be given to it in writing at its
address specified in the books of the Partnership. Any such notice may be given
by hand delivery, reputable courier service, certified mail or telecopier. Each
such notice shall be effective (i) in case given by mail, two days after
mailing, postage prepaid, and (ii) in all other cases, upon receipt.
<PAGE>
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IN WITNESS WHEREOF, each of the undersigned has signed this
agreement as set forth below to be effective as of the date first above written.
WORLD FINANCIAL PROPERTIES, INC.
By:
-----------------------------------
Name:
Title:
BATTERY PARK HOLDINGS INC.
By:
----------------------------------
Name:
Title:
OLYMPIA & YORK
TOWER B COMPANY
By: BATTERY PARK HOLDINGS INC.,
general partner
By:
----------------------------------
Name:
Title:
CANADIAN IMPERIAL BANK
OF COMMERCE
By:
---------------------------------
Name:
Title:
<PAGE>
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WFP HOLDINGS LIMITED PARTNERSHIP
By: WFP Inc., its general partner
By:
--------------------------------
Name:
Title:
EMERALD LP HOLDINGS, INC.
By:
-------------------------------
Name:
Title:
JMB 245 PARK AVENUE HOLDING COMPANY,
LLC
By: JMB/245 PARK AVENUE ASSOCIATES,
LTD., its managing member
By: JMB PARK AVENUE, INC.,
a general partner
By:
------------------------------------
Name:
Title:
WORLD FINANCIAL PROPERTIES, INC., as authorized
signatory for the Limited Partners identified
on Schedule I annexed hereto (other than BPHI
Partner, Dragon Partner, CIBC Partner and
Citibank Partner)
By:
----------------------------------
Name:
Title:
<PAGE>
SCHEDULE I
Partners and Units
Class A Class B-1 Class B-2
Partners Units Units Units
General Partners
WORLD FINANCIAL
PROPERTIES, INC. _____ _____ _____
JMB 245 PARK AVENUE
HOLDING COMPANY, LLC _____ _____ _____
Limited Partners
BATTERY PARK HOLDINGS
INC. _____ _____ _____
OLYMPIA & YORK TOWER B
COMPANY
CANADIAN IMPERIAL BANK _____ _____ _____
OF COMMERCE
WFP HOLDINGS LIMITED
PARTNERSHIP _____ _____ _____
EMERALD LP HOLDINGS,
INC. _____ _____ _____
[UNSECURED CREDITOR] _____ _____ _____
[UNSECURED CREDITOR] _____ _____ _____
[UNSECURED CREDITOR] _____ _____ _____
[UNSECURED CREDITOR] _____ _____ _____
[UNSECURED CREDITOR] _____ _____ _____
- -------------------
* Asterisks indicate Persons that are Excluded Class B
Partners.
<PAGE>
EXHIBIT A
[Form of Unit Certificate]
<PAGE>
EXHIBIT B
[Form of Transfer Application]
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
WORLD FINANCIAL PROPERTIES, INC.
--------------------
The undersigned, for the purposes of changing the name of and amending
and restating the Certificate of Incorporation of World Financial Properties,
Inc., a Delaware corporation (the "Corporation"), does hereby certify that:
(1) The name of the Corporation is currently World Financial
Properties GP Corp.
(2) The date of filing of its original Certificate of Incorporation
with the Secretary of State of Delaware was October 2, 1996.
(3) The Corporation has not received any payment for
any of its stock.
(4) This Amended and Restated Certificate of Incorporation was duly
adopted by the Board of Directors as of November 12, 1996, pursuant to Section
241 and Section 245 of the Delaware General Corporation Law.
<PAGE>
-2-
(5) The Certificate of Incorporation of World Finan-
cial Properties, Inc. is hereby amended and restated in its
entirety as follows:
ARTICLE I
NAME
The name of the Corporation is:
WORLD FINANCIAL PROPERTIES, INC.
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The registered office of the Corporation in the State of Delaware is
located at 1209 Orange Street in the City of Wilmington, County of New Castle.
The name and address of the Corporation's registered agent at such address is
The Corporation Trust Company.
ARTICLE III
CORPORATE PURPOSES AND POWERS
The purpose of the Corporation is to engage in any capacity, whether
by itself or by or through any other person, organization, association,
partnership, corporation or other entity in which the Corporation may have an
interest, in any
<PAGE>
-3-
lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware, and the Corporation shall be
authorized to exercise and enjoy all powers, rights and privileges conferred
upon corporations by the laws of the State of Delaware as in force from time to
time including, without limitation, all powers necessary or appropriate to carry
out all those acts and activities in which it may lawfully engage.
ARTICLE IV
CAPITAL STOCK
The total number of shares of capital stock the Corporation shall
have authority to issue, from time to time, is 1,000 shares of Common Stock,
par value $.01 per share (the "Common Stock").
Each share of Common Stock shall be entitled to one vote. So long as
any Common Stock is outstanding, and so long as not otherwise prohibited
elsewhere herein, each share of Common Stock shall entitle the holder thereof to
vote on all matters to be voted upon at all meetings of the stockholders of the
Corporation.
<PAGE>
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The affirmative vote of the holders of at least 90% of the
outstanding shares of Common Stock, in person or by proxy, at a special or
annual meeting of stockholders called for the purpose, shall be necessary to (x)
authorize the creation or issuance of, or an increase in the authorized number
of shares of any existing class of, capital stock ranking senior to or pari
passu with the Common Stock (either as to dividends or upon voluntary or
involuntary liquidation, dissolution or winding up of the Corporation); (y)
authorize any increase in the authorized number of shares of, or issue any
shares of, Common Stock; or (z) authorize, adopt or approve an amendment to this
Certificate of Incorporation which would decrease the aggregate number of
authorized shares of Common Stock, increase or decrease the par value of the
shares of Common Stock, or alter or change the powers, preferences or special
rights of the shares of Common Stock or authorize the creation of any class of
capital stock ranking senior to or pari passu with the Common Stock.
<PAGE>
-5-
ARTICLE V
DIVIDENDS
The Corporation shall pay, when, as and if declared, so long as
permitted under the General Corporation Law of the State of Delaware and out of
funds legally available therefor, dividends on its Common Stock, at such times
as determined by the Board of Directors, from time to time.
A director shall be fully protected in relying in good faith upon
the books of account or other records of the Corporation or statements prepared
by any of its officers or by independent public accountants or by an appraiser
selected with reasonable care by the Board (as defined below) or any committee
thereof as to the value and amount of the assets, liabilities, net profits,
Common Stock and surplus of the Corporation, or any other facts pertinent to the
existence and amount of surplus or other funds from which dividends might
properly be declared and paid, or with which the Corporation's capital stock
might properly be purchased or redeemed.
ARTICLE VI
CORPORATE EXISTENCE
The Corporation is to have perpetual existence.
<PAGE>
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ARTICLE VII
BOARD OF DIRECTORS
(a) Members of the Board; Appointment.
(i) The initial directors shall be as set forth in the Statement of
the Sole Incorporator. Thereafter, members of the board of directors (the
"Board") shall be designated (which designation need not be made in the
form of a written ballot) by the holders of a majority of all outstanding
shares of Common Stock. At any time and from time to time, subsequent to
the initial appointment of directors by the sole incorporator, the number
of directors that shall constitute the whole Board may (in compliance with
the provisions of subparagraph (ii) of this paragraph (a)) be increased to
not more than twelve or decreased to not less than one. Any director may
be removed either with or without cause by the holders of a majority of
all outstanding shares of Common Stock.
(ii) Any change in the number of directorships must be authorized by
the holders of a majority of all the outstanding shares of Common Stock.
<PAGE>
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(b) Power and Authorization of the Board.
In furtherance and not in limitation of the powers conferred by
statute, the Board is expressly authorized:
(i) to make, alter, amend or repeal the By-laws, except as otherwise
expressly provided in any By-law made by the holders of the capital stock
of the Corporation entitled to vote thereon. Any By-law may be altered,
amended or repealed by the holders of the capital stock of the Corporation
entitled to vote thereon at any annual meeting or at any special meeting
called for that purpose;
(ii) to determine the use and disposition of any surplus and net
profits of the Corporation, including the determination of the amount of
working capital required, to set apart out of any of the funds of the
Corporation, whether or not available for dividends, a reserve or reserves
for any proper purpose and to abolish any such reserve in the manner in
which it was created; and
(iii) to have the general management and control of all the property
of the Corporation and exercise all the powers of the Corporation, except
such as may be expressly by statute, by this Certificate of Incorporation
or by the
<PAGE>
-8-
By-laws conferred upon or reserved to the stockholders. Without limiting
the generality of the foregoing powers, the Board, without consent or
other action of the stockholders of the Corporation, may authorize the
Corporation to purchase, acquire, hold, lease, mortgage, pledge, sell or
convey such property, real and personal, as it may, from time to time,
determine, and in payment for any property or for money to issue or cause
to be issued, in any manner permitted by law, stock of the Corporation, or
bonds, debentures, notes or other obligations thereof, secured or
unsecured.
(c) Major Decisions.
Notwithstanding the provisions of subsection (b) of this Article
VII, the Corporation shall not take, or agree or otherwise commit to take, or
permit any Person (as defined below) Controlled (as defined below) by the
Corporation to take, or agree or otherwise commit to take, any action
constituting, approving, effecting or otherwise implementing any Major Decision
(as defined below) unless such Major Decision shall have been approved in
writing by each Founding Shareholder (as defined below) existing at the time of
the taking of such action or, if earlier, at the time of entering into any
<PAGE>
-9-
agreement or other commitment to take such action. Each of the following matters
(whether proposed to be undertaken by the Corporation or by any Person
Controlled by the Corporation) shall constitute a "Major Decision":
(i) any significant acquisition by or involving the Corporation or
any Person Controlled by the Corporation, or any merger, consolidation or
other business combination (including, without limitation, any transaction
involving the creation of an umbrella partnership real estate investment
trust or similar investment vehicle) by or involving the Corporation or
any Person Controlled by the Corporation, any liquidation or dissolution
of the Corporation or any sale or other disposition of all or
substantially all the Corporation's or any Person Controlled by the
Corporation's interest in any Core Property (as defined below), including
any such sale or disposition that occurs in connection with the
liquidation or dissolution of the Corporation or any Person Controlled by
it;
(ii) the incurrence, refinancing or refunding by the Corporation or
any Person Controlled by the Corporation of any significant long term
indebtedness (other than a refinancing or refunding in a principal amount
not greater than the principal amount of the indebtedness so refinanced or
refunded plus the amount of any transaction costs in respect of such
refinancing or refunding);
(iii) the refinancing or refunding by the Corporation or any Person
Controlled by the Corporation of any long term indebtedness if such
indebtedness, as refinanced or refunded, is convertible into or
exchangeable for equity interests in any Person Controlled by the
Corporation (other than a conversion into equity securities of WFPLP (as
defined below) or a Person Controlled by it that is consummated in
connection with an actual or anticipated loan default or acceleration
where all other reasonable work-out proposals have been rejected by the
applicable lender);
(iv) any transaction between the Corporation or any Person Controlled
by the Corporation and any Related Person (as defined below); provided,
however, that (A) the
<PAGE>
-10-
incurrence of indebtedness or the issuance of equity securities by the
Corporation or a Person Controlled by the Corporation to a Related Person
shall not constitute a Major Decision if the net proceeds thereof are
applied to pay or reimburse the cost and expenses of abating or averting
any Emergency (as defined below) and the Related Person Debt or Emergency
Equity Conditions (as defined below) are complied with prior to or within
30 days after such incurrence or issuance or (B) the incurrence of
indebtedness to a Related Person or the refinancing or refunding of
indebtedness with a Related Person, in either case in a transaction that
does not constitute a Major Decision under clause (ii) or clause (iii)
above, shall not constitute a Major Decision if the Corporation or any
Person Controlled by the Corporation shall have satisfied with respect to
such incurrence, refinancing or refunding the Related Person Debt or
Emergency Equity Conditions;
(v) the initial selection, and any removal or replacement, of the
Corporation's president or chief executive officer during the three-year
period following the Effective Date (as defined below);
(vi) the issuance, distribution or reacquisition of any substantial
equity interest in WFPLP (other than (i) the issuance of equity securities
in accordance with the provisions of the proviso to clause (iv) above or
(ii) pursuant to the provisions of (1) any debt instrument in effect on
the Effective Date, (2) Article 5 of the Amended and Restated Agreement of
Limited Partnership of WFPLP as in effect on the Effective Date or (3) a
debt or other instrument or agreement hereafter in effect and entered into
by the Corporation or a Person Controlled by the Corporation in a
transaction that did not violate the provisions of this subsection (c));
or
(vii) any amendment of the organizational documents of any Person
Controlled by the Corporation affecting cumulative voting in any election
of directors or affecting any of the matters referred to in clauses (i)
through (vi) of this subsection (c).
As used in this subsection (c), the following terms have the
following definitions:
<PAGE>
-11-
"Affiliate" means, as to any Person, any other Person Controlled by,
Controlling or under common Control with, such Person.
"Arm's-length Basis" means, as to any transaction, agreement or
other arrangement, being on terms that would be reached by unrelated
parties not under any compulsion to contract.
"Class A Units" has the meaning given to such term in the Amended
and Restated Agreement of Limited Partnership of WFPLP (as in effect on
the date hereof).
"Control, Controlling, Controlled" means, as to any Person, the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through
ownership of voting securities or partnership interests, by contract or
otherwise.
"Core Property" means each of the parcels of real property located
at (i) 53 State Street, Boston, Massa- chusetts, (ii) One Liberty Plaza,
New York, New York, (iii) 245 Park Avenue, New York, New York, (iv) One
World Financial Center, New York, New York, (v) Two World Financial
Center, New York, New York, and (vi) Four World Financial Center, New
York, New York, in each case together with the office building and other
improvements existing thereon.
"Effective Date" has the meaning given to such term in the Third
Amended Joint Plan of Reorganization of Olympia & York Realty Corp. et
al., Chapter 11 Case Number 92 B 42698 (JLG) (jointly administered), dated
September 12, 1996).
"Emergency" means in respect of any Core Property or other material
asset of the Corporation or any Person Controlled by the Corporation, any
situation or condition in, under, at or about such Core Property or other
asset that represents a threat to the health and/or safety of natural
Persons at or in such Core Property or adjoining parcels or the public at
large; provided, however, that to the extent reasonably practicable the
Board shall concur in a determination of an Emergency.
<PAGE>
-12-
"Founding Shareholders" means each of WFP II Limited Partnership
(including its successors and assigns) and Emerald GP Holdings, Inc.
(including its successors and assigns), but only so long as, (i) in the
case of Emerald GP Holdings, Inc., Citibank, N.A. and all its Affiliates
shall own, directly or indirectly, Class A Units representing not less
than 52% of the aggregate number of Class A Units issued to Emerald LP
Holdings Inc. on the Effective Date, and (ii) in the case of WFP II
Limited Partnership, the WFP Group collectively shall own, directly or
indirectly, a number of Class A Units representing not less than 17% of
the aggregate number of Class A Units issued to the members of the WFP
Group on the Effective Date.
"Person" means a natural person or a corporation, partnership,
limited liability company, trust, unincorporated association or other
entity.
"Related Person" means each Person that owns, directly or
indirectly, more than 20% of any class of the capital stock of the
Corporation or any Affiliate of such a Person (other than a Person
Controlled by the Corporation).
"Related Person Debt or Emergency Equity Conditions" means, in
respect of any incurrence, refinancing or refunding of indebtedness or the
issuance of equity securities by the Corporation or a Person Controlled by
the Corporation, that either (i) the terms of such indebtedness or such
equity securities and the terms of issuance thereof, as the case may be,
shall have been determined to be fair to the Corporation or such Person
from a financial point of view by a nationally recognized investment bank
or financial advisor acceptable to each Founding Shareholder in its
reasonable discretion or (ii) (a) in the case of the incurrence,
refinancing or refunding of any such indebtedness, such indebtedness is on
terms determined (in the reasonable judgment of the Corporation) to be the
most advantageous terms then available from among a group of not less than
five lenders (including Citibank, N.A. (so long as it or any Affiliate
thereof shall constitute a Founding Limited Partner) and Canadian Imperial
Bank of Commerce (so long as it or any Affiliate thereof shall constitute
a Founding Limited Partner)) to which the Corporation or such Person shall
have made application
<PAGE>
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for the funding of any such indebtedness or (b) in the case of the
issuance of such equity securities, all Persons then constituting the
Founding Limited Partners shall have been given a reasonable opportunity
to purchase its pro rata portion (viz., an amount that is in proportion to
the percentage beneficial ownership of such Person and its Affiliates of
the total then outstanding Class A Units in WFPLP) of such securities on
the same terms and conditions per unit.
"WFPLP" means World Financial Properties, L.P. and
its successors and assigns.
"WFP Group" means, at any time, the Persons then comprising all the
partners of WFP II Limited Partnership and all Affiliates of such Persons.
ARTICLE VIII
LIMITATION OF LIABILITY AND INDEMNIFICATION
OF DIRECTORS, OFFICERS AND OTHERS
(a) A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability
(i) for any breach of the director's duty of loyalty
to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of
law,
<PAGE>
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(iii) under Section 174 of the Delaware General Corporation Law, which
provision, among other things, makes directors personally liable for
unlawful dividends or unlawful stock repurchases or redemptions and
expressly sets forth a negligence standard with respect to such liability,
or
(iv) for any transaction from which the director
derived an improper personal benefit.
If the Delaware General Corporation Law is amended after approval by the
stockholders of this paragraph (a) of Article VIII to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so amended.
(b) Any repeal or modification of paragraph (a) of this Article VIII
by the stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
<PAGE>
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(c) (1) Each person who was or is made a party or is threatened to
be made a party or is otherwise involved in any pending, threatened or completed
action, suit or proceeding, whether civil, criminal, administrative,
investigative or otherwise (hereinafter a "proceeding"), by reason of the fact
that he or she, or a person of whom he or she is the legal representative, is or
was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, limited liability company, joint
venture trust or other entity (each, an "Other Entity") if the basis of any such
proceeding is action in such capacity, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the Delaware General
Corporation Law as the same exists, or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than such law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including penalties, fines, judgments, attorneys' fees,
amounts paid or to be paid in settlement and excise taxes or penalties)
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as
<PAGE>
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to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and administrators;
provided, however, that the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person (other than pursuant to paragraph (c)(2) of this Article VIII) only
if such proceeding (or part thereof) was authorized by the Board. The right to
indemnification conferred in this paragraph (c)(1) of Article VIII shall be a
contract right and shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that if the Delaware General Corporation Law
requires the payment of such expenses incurred by a director or officer in his
or her capacity as a director or officer in advance of the final disposition of
a proceeding, payment shall be made only upon delivery to the Corporation of an
undertaking by or on behalf of such director or officer to repay all amounts so
advanced if it shall ultimately be determined by a final, unappealable order of
a court of competent jurisdiction that such director or officer is not entitled
to be indemnified under this paragraph (c)(1) of Article VIII or otherwise. Such
expenses
<PAGE>
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incurred by other agents may be so paid upon such terms and conditions, if any,
as the Board deems appropriate.
(2) If a claim for indemnification which the Corporation is
obligated to pay under paragraph (c)(1) of this Article VIII is not paid in full
by the Corporation within 60 days after a written request therefor has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the Dela- ware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board,
independent legal counsel or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has
<PAGE>
-18-
met the applicable standard of conduct set forth in the Dela- ware General
Corporation Law, nor an actual determination by the Corporation (including its
Board, independent legal counsel or its stockholders) that the claimant has not
met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
(3) The provisions of this subsection (c) of Article VIII shall
cover claims, actions, suits and proceedings, civil or criminal, whether now
pending or hereafter commenced and shall be retroactive to cover acts or
omissions or alleged acts or omissions which heretofore have taken place. If any
part of this subsection (c) of Article VIII should be found to be invalid or
ineffective in any proceeding, the validity and effect of the remaining
provisions shall not be affected.
(4) The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this subsection (c) of Article VIII shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
this Certificate of Incorporation, By-law,
<PAGE>
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agreement, vote of stockholders or disinterested directors or
otherwise.
(5) The Corporation may purchase and maintain insurance, at its
expense, to protect itself and any director, officer or agent of the Corporation
or any Other Entity against any such expense, liability or loss, whether or not
the Corporation would have the power to indemnify such person against such
expense, liability or loss under the Delaware General Corporation Law.
ARTICLE IX
RESERVATION OF RIGHT TO AMEND
CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation in the manner now
or hereafter prescribed by law, and all the provisions of this Certificate of
Incorporation and all rights and powers conferred in this Certificate of
Incorporation on stockholders, directors and officers are subject to this
reserved power; provided, however, that no amendment to the provisions of (i)
the last paragraph of Article IV or this proviso (other than clause (ii) hereof)
shall be effective unless consented to in writing by the holders of at least
<PAGE>
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90% of the outstanding shares of Common Stock and (ii) subsection (c) of Article
VII or this proviso (other than clause (i) hereof) shall be effective unless
consented to in writing by all Founding Shareholders of the Corporation.
<PAGE>
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IN WITNESS WHEREOF, the undersigned has executed this Amended and
Restated Certificate of Incorporation on behalf of World Financial Properties,
Inc. and does verify and affirm, under penalties of perjury, that this Amended
and Restated Certificate of Incorporation is the act and deed of the Corporation
and that the facts stated herein are true as of this _____ day of November,
1996.
WORLD FINANCIAL PROPERTIES, INC.
By:
Name:
Title:
WORLD FINANCIAL PROPERTIES, INC.
* * * * * * * * * * * *
AMENDED AND RESTATED
BY-LAWS
* * * * * * * * *
ARTICLE I
OFFICES
SECTION 1. Registered Office. The registered office
of World Financial Properties, Inc., a Delaware corporation
formerly known as World Financial Properties GP Corp. (the
"Corporation"), shall be in the City of Wilmington, County of
New Castle, State of Delaware.
SECTION 2. Other Offices. The Corporation may also have offices at
such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. Place and Date of Annual Meeting; Notice.
The annual meeting of the stockholders of the Corporation shall
<PAGE>
-2-
be held at such place, within or without the State of Delaware, at such time and
on such day as may be determined by the Board of Directors and as such shall be
designated in the notice of said meeting, for the purpose of electing directors
and for the transaction of such other business as may properly be brought before
the meeting. Written notice of the annual meeting stating the place, date and
hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten nor more than sixty days before the date of the
meeting.
SECTION 2. Special Meetings; Notice. Special meetings of the
stockholders for any purpose or purposes, unless otherwise prescribed by statute
or by the Certificate of Incorporation, may be held at any place, within or
without the State of Delaware, and may be called by resolution of the Board of
Directors, by the Chairman of the Board or by the holders of not less than a
majority of the shares entitled to vote at the meeting. Such request shall state
the purpose or purposes of the meeting. Written notice of a special meeting
stating the place, date and hour of the meeting and the purpose or purposes for
which the meeting is called shall be given not less than ten nor more than
thirty days before the date of the meeting to each stockholder entitled to vote
at such meeting. Business
<PAGE>
-3-
transacted at any special meeting of stockholders shall be limited to the
purposes stated in the notice.
SECTION 3. Quorum. The holders of a majority of the shares of stock
issued and outstanding and entitled to vote, represented in person or by proxy,
shall constitute a quorum at all meetings of the stockholders for the
transaction of business, except as otherwise provided by law, by the Certificate
of Incorporation or by these By-laws. If a quorum is present or represented, the
affirmative vote of a majority of the shares of stock present or represented at
the meeting shall be the act of the stockholders, unless the vote of a greater
number of shares of stock is required by law, by the Certificate of
Incorporation or by these By-laws. If, however, such quorum shall not be present
or represented at any meeting of the stockholders, the stockholders present in
person or represented by proxy shall have the power to adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present or represented. At such adjourned meeting, at which a
quorum shall be present or represented, any business may be transacted which
might have been transacted at the meeting as originally noticed.
<PAGE>
-4-
SECTION 4. Action Without Meeting. Any action required to be taken
at a meeting of the stockholders may be taken without notice and without a
meeting if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
SECTION 5. Stockholders List. The officer who has charge of the
stock ledger of the Corporation shall prepare and make, at least fifteen days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
such stockholder. Such list shall be open to the examination of any
stockholders, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so
<PAGE>
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specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
SECTION 6. Voting. Unless otherwise provided in the Certificate of
Incorporation, each stockholder shall at every meeting of the stockholders be
entitled to vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be valid after
the third anniversary of its date of issuance, unless such proxy expressly
provides for a longer period of effectiveness.
ARTICLE III
DIRECTORS
SECTION 1. Number, Election, Term. The Board of Directors shall
consist of that number of directors provided in the Certificate of
Incorporation. The number of directors which shall constitute the whole Board
may be increased or decreased to the number of directors and in the manner set
forth in the Certificate of Incorporation. The directors shall be elected
annually, either at the annual meeting of the stockholders or by written consent
of the stockholders entitled to vote in lieu of the annual meeting as provided
in Article II,
<PAGE>
-6-
Section 4, except as provided in Section 2 of this Article, and each director
elected, unless removed as provided below, shall hold office until the next
annual meeting of stockholders and until his successor is elected and qualified
or until his earlier death or resignation. Directors need not be stockholders.
SECTION 2. Vacancies. Any vacancies and newly created directorships
may be filled by a majority of the directors then in office, though less than a
quorum, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and qualified. A vacancy
created by the removal of a director by the stockholders may be filled by the
stockholders.
SECTION 3. Powers. The business of the Corporation shall be managed
by or under the direction of its Board of Directors, which may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
statute or by the Certificate of Incorporation or by these By-laws directed or
required to be exercised or done by the stockholders or which are not, by the
Certificate of Incorporation, prohibited to be done by the Board of Directors.
SECTION 4. First Meeting. The first meeting of each
newly elected Board of Directors shall be held at such time and
<PAGE>
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place as shall be announced at the annual meeting of stockholders and no other
notice of such meeting shall be necessary to the newly elected directors in
order legally to constitute the meeting, provided a quorum shall be present, or
in the event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
Board of Directors, or as shall be specified in a written waiver signed by all
of the directors.
SECTION 5. Regular Meetings. Regular meetings of the Board of
Directors may be held upon such notice, or without notice, and at such time and
at such place as shall from time to time be determined by the Board.
SECTION 6. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board on two days' notice to each
director, either personally or by mail or by telegram. Special meetings shall be
called by the Chairman of the Board or secretary in like manner and on like
notice on the written request of two directors.
SECTION 7. Waiver. Attendance of a director at any
meeting shall constitute a waiver of notice of such meeting,
<PAGE>
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except where a director attends for the express purpose of objecting at the
beginning of the meeting to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the Board of Directors
need be specified in the notice or waiver of notice of such meeting.
SECTION 8. Quorum. At all meetings of the Board of Directors a
majority of the total number of directors then constituting the whole Board
shall constitute a quorum for the transaction of business, and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute, by the Certificate of Incorporation or by
these By-laws. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
SECTION 9. Action Without Meeting. Unless otherwise
restricted by the Certificate of Incorporation or these
By-laws, any action required or permitted to be taken at any
<PAGE>
-9-
meeting of the Board of Directors or of any committee thereof may be taken
without notice and without a meeting, if prior to such action a written consent
thereto is signed by all members of the Board or of such committee, as the case
may be, and such written consent is filed with the minutes of proceedings of the
Board or committee.
SECTION 10. Telephonic Communications. Unless otherwise restricted
by the Certificate of Incorporation or these By-laws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken in a meeting of the Board or any committee by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and such
participation shall constitute presence in person at the meeting.
SECTION 11. Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of two or more of the directors of the Corporation which,
to the extent provided in the resolution and to the extent not inconsistent with
any provision of these By-Laws, shall have and may exercise the powers of the
Board of Directors in the management
<PAGE>
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of the business and affairs of the Corporation and may authorize the seal of the
Corporation to be affixed to all papers which may require it. Each committee
shall have such names, powers and duties as may be determined from time to time
by resolution adopted by the Board of Directors. The initial committees shall be
(a) a management committee, (b) an executive committee, (c) an audit committee
relating to financial controls and reporting and (d) a compensation committee,
each of which shall consist of five directors of the Corporation.
SECTION 12. Removal of Directors. Unless otherwise restricted by the
Certificate of Incorporation or these By-laws, any director or the entire Board
of Directors may be removed, with or without cause, by the holders of a majority
of the shares entitled to vote at an election of directors.
SECTION 13. Chairman of the Board. The Chairman of the Board of
Directors shall be elected by a majority of the directors.
ARTICLE IV
OFFICERS
SECTION 1. Election and Office. The officers of the
Corporation shall be chosen by the Board of Directors and shall
<PAGE>
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be a chief executive officer or president and a secretary. The Board of
Directors may also elect such additional officers as may, from time to time, be
deemed desirable. Any number of offices may be held by the same person.
SECTION 2. Term, Powers and Duties. The term of
office, powers and duties of each officer of the Corporation
shall be as specified by the Board of Directors.
SECTION 3. Salaries. The salaries of all officers
and agents of the Corporation shall be fixed by the Board of
Directors.
SECTION 4. Removal and Vacancies. The officers of the Corporation
shall hold office until their successors are chosen and qualify. Except as
otherwise provided in these By-Laws, any officer elected or appointed by the
Board of Directors may be removed at any time, with or without cause, by the
affirmative vote of a majority of the Board of Directors. Any vacancy occurring
in any office of the Corporation shall be filled by the Board of Directors.
<PAGE>
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ARTICLE V
CAPITAL STOCK
SECTION 1. Certificates for Shares. Every owner of stock of the
Corporation shall be entitled to have a certificate or certificates in such form
as the Board of Directors shall prescribe certifying the number of shares of
stock owned by such owner, except as provided below. The certificates shall be
signed by hand or by facsimile in the name of the Corporation by such officer or
officers as the Board shall appoint. The Board of Directors may provide by
resolution that the stock of the Corporation shall be uncertificated shares.
Notwithstanding the adoption of such a resolution by the Board, every holder of
uncertificated shares shall, upon request, be entitled to receive a certificate,
signed by such officers designated by the Corporation and complying with the
Delaware General Corporation Law, representing the number of shares in
registered certificate form. A record shall be kept of the names of the persons
owning any such stock, whether certificated or uncertificated, and the number of
shares owned by each such person.
SECTION 2. Lost, Stolen or Destroyed Certificates.
The Board of Directors may direct a new certificate to be
<PAGE>
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issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed. When authorizing such issue of a new
certificate, the Board of Directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and may require such affidavit of loss and/or such indemnities
as it deems adequate to protect the Corporation from any claim that may be
raised against it with respect to any such certificate alleged to have been
lost, stolen or destroyed.
SECTION 3. Transfer of Shares. Upon surrender to the secretary of
the Corporation, or, if a transfer agent for the Corporation has been named by
the Board of Directors, to the transfer agent, of a certificate representing
shares duly endorsed or accompanied by proper evidence of succession, assignment
or authority to transfer (and of payment of any applicable stamp, documentary or
transfer taxes associated therewith), a new certificate shall be issued to the
person entitled thereto, and the old certificate cancelled and the transaction
recorded upon the books of the Corporation.
SECTION 4. Fixing Record Date. In order that the
Corporation may determine the stockholders entitled to notice
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of or to vote at any meeting of the stockholders or any adjournment thereof, or
to express consent to corporate action in writing without a meeting, or entitled
to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of any stock or for the purpose of any other lawful action, the
Board of Directors may fix, in advance, a record date, which shall not be more
than sixty and not less than ten days before the date of such meeting, nor more
than sixty days prior to any other action. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
SECTION 5. Registered Stockholders. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or
<PAGE>
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other notice thereof, except as otherwise provided by the laws
of Delaware.
SECTION 6. Signing Authority. Except as provided below, all
contracts, agreements, assignments, transfers, deeds, stock powers or other
instruments of the Corporation may be executed and delivered by the chief
executive officer or president or by such other officer or officers, or agent or
agents, of the Corporation as shall be thereunto authorized from time to time
either by the Board of Directors or by power of attorney executed by any person
pursuant to authority granted by the Board of Directors, and the secretary may
affix the seal of the Corporation thereto and attest same. Certificates issued
upon request to holders of uncertificated stock shall be signed by the president
and the secretary.
ARTICLE VI
GENERAL PROVISIONS
SECTION 1. Dividends. Dividends upon the capital
stock of the Corporation, subject to the provisions of the Cer-
tificate of Incorporation, if any, may be declared by the Board
of Directors at any regular or special meeting, pursuant to
law. Dividends may be paid in cash, in property, or in shares
<PAGE>
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of the capital stock of the Corporation, subject to the provi-
sions of the Certificate of Incorporation.
SECTION 2. Reserves. Before payment of any dividend, there may be
set aside out of any funds of the Corporation available for dividends such sum
or sums as the directors from time to time, in their absolute discretion, deem
proper as a reserve for such purposes as the directors shall deem to be in
furtherance of the interests of the Corporation. The directors may from time to
time, in their absolute discretion, modify or terminate any such reserve
previously established by the Corporation.
SECTION 3. Notices. Whenever, under the provisions of applicable law
of the State of Delaware, the Certificate of Incorporation or of these By-laws,
notice is required to be given to any director or stockholder, it shall not be
construed to mean personal notice, but such notice may be given in writing, by
mail, addressed to such director or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in the
United States mail. Notice to directors may also be given by telegram.
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Whenever any notice is required to be given under the provisions of
applicable law of the State of Delaware, the Certificate of Incorporation or of
these By-laws, a waiver thereof in writing signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice.
SECTION 4. Fiscal Year. The fiscal year of the Cor-
poration shall be fixed by resolution of the Board of
Directors.
SECTION 5. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
SECTION 6. Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization and the words "Corporate
Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
SECTION 7. Indemnification. Subject to the provi-
sions of the Certificate of Incorporation, the Corporation
shall indemnify its officers, directors, employees and agents
<PAGE>
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to the fullest extent permitted by the General Corporation Law
of Delaware.
SECTION 8. Amendments. Except as may be otherwise specifically
provided under applicable law of the State of Del- aware, by the Certificate of
Incorporation or by these By-laws, these By-laws may be altered, amended or
repealed or new By-laws may be adopted (a) at any regular or special meeting of
stockholders at which a quorum is present or represented, by the affirmative
vote of a majority of the shares entitled to vote, provided notice of the
proposed alteration, amendment or repeal be contained in the notice of such
meeting; or (b) by the affirmative vote of a majority of the Board of Directors
at any regular or special meeting of the Board. The stockholders shall have
authority to change or repeal any By-laws adopted by the Board of Directors.
WORLD FINANCIAL PROPERTIES, L.P.
and
THE BANK OF NEW YORK, as Trustee
-----------------------------
INDENTURE
Dated as of November 20, 1996
-----------------------------
$
Increasing Rate Convertible Notes due 2004
<PAGE>
CROSS REFERENCE TABLE1
TIA Indenture
Section Section
310 (a) (1)............................................... 7.10
(a) (2)............................................... 7.10
(a) (3)............................................... N.A.2
(a) (4)............................................... N.A.
(a) (5)............................................... N.A.
(b)................................................... 7.8; 7.10
(c)................................................... N.A
311 (a)................................................... 7.11
(b)................................................... 7.11
(c)................................................... N.A
312 (a)................................................... 2.5
(b)................................................... 10.3
(c)................................................... 10.3
313 (a)................................................... 6.6
(b) (1)............................................... N.A.
(b) (2)............................................... 6.6
(c)................................................... 6.6
(d)................................................... 6.6
314 (a)................................................... 4.2; 4.3; 10.2
(b)................................................... N.A.
(c) (1)............................................... 10.4
(c) (2)............................................... 10.4
(c) (3)............................................... N.A.
(d)................................................... N.A
(e)................................................... 10.5
(f)................................................... N.A.
315 (a)................................................... 7.1
(b)................................................... 7.5
(c)................................................... 7.1
(d)................................................... 7.1
(e)................................................... 6.11
316 (a) (last sentence)................................... 2.9
(a) (1) (A)........................................... 6.5
(a) (1) (B)........................................... 6.4
(a) (2)............................................... N.A.
(b)................................................... 6.7
(c)................................................... 2.13
317 (a) (1)............................................... 6.8
(a) (2)............................................... 6.9
(b)................................................... 2.4
318 (c)................................................... 10.1
1. Notes: This Cross Reference Table shall not, for any purpose, be deemed to
be part of this Indenture.
2. N.A. means Not Applicable.
<PAGE>
TABLE OF CONTENTS1
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE.............. 1
SECTION 1.1. Definitions............................................. 1
SECTION 1.2. Other Definitions....................................... 15
SECTION 1.3. Incorporation by Reference of Trust Indenture
Act.................................................. 17
SECTION 1.4. Rules of Construction................................... 17
SECTION 1.5. Acts of Holders......................................... 17
ARTICLE 2 THE NOTES............................................... 18
SECTION 2.1. Form and Dating......................................... 18
SECTION 2.2. Execution and Authentication; Aggregate Principal
Amount............................................... 19
SECTION 2.3. Registrar and Paying Agent.............................. 19
SECTION 2.4. Paying Agent To Hold Money in Trust. ................... 20
SECTION 2.5. Noteholder Lists........................................ 20
SECTION 2.6. Transfer and Exchange................................... 21
SECTION 2.7. Replacement Notes....................................... 21
SECTION 2.8. Outstanding Notes....................................... 22
SECTION 2.9. Treasury Notes.......................................... 22
SECTION 2.10. Temporary Notes......................................... 23
SECTION 2.11. Cancellation............................................ 23
SECTION 2.12. Defaulted Interest...................................... 23
ARTICLE 3 REDEMPTION.............................................. 23
SECTION 3.1. Optional Right to Redeem; Notices to Trustee............ 23
SECTION 3.2. Selection of the Notes or Portions Thereof to be Redeemed. 24
SECTION 3.3. Notice of Redemption.................................... 24
SECTION 3.4. Effect of Notice of Redemption.......................... 25
SECTION 3.5. Deposit of Redemption Price............................. 25
SECTION 3.6. Notes Redeemed in Part.................................. 26
SECTION 3.7. Special Procedures for Change in Control Offer,
Excess Proceeds Offer and Capital Infusion Offer..... 26
ARTICLE 4 COVENANTS............................................... 29
SECTION 4.1. Payment of Principal, Premium and Interest.............. 29
SECTION 4.2. Provision of Reports and Other Information.............. 29
SECTION 4.3. Compliance Certificates................................. 31
SECTION 4.4. Further Instruments and Acts............................ 32
SECTION 4.5. Maintenance of Office or Agency......................... 32
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1 This Table of Contents shall not, for any purpose, be deemed to be part of
this Indenture.
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Page
SECTION 4.6. Limitation on Restricted Payments...................... 32
SECTION 4.7. Limitation on Additional Indebtedness.................. 33
SECTION 4.8. Limitation on Transactions with Affiliates............. 34
SECTION 4.9. Repurchase Upon Change in Control...................... 34
SECTION 4.10. Limitation on Use of Proceeds from Asset Sales......... 34
SECTION 4.11. Payment of Taxes and Other Claims...................... 35
SECTION 4.12. Corporate or Partnership or Other Existence............ 36
SECTION 4.13. Maintenance of Properties and Insurance................ 36
SECTION 4.14. Stay, Extension and Usury Laws......................... 36
SECTION 4.15. Payment for Consent.................................... 37
SECTION 4.16. Covenant to Comply with Securities Laws upon
Purchase of the Notes................................ 37
SECTION 4.17. Capital Infusion Offer................................. 37
SECTION 4.18. Officers' Certificates................................. 37
SECTION 4.19. Tag Along Rights....................................... 37
SECTION 4.20. Certain Amendments to Partnership Agreement............ 40
SECTION 4.21. Limitations on Subsidiary Owners....................... 40
ARTICLE 5 SUCCESSOR ENTITY....................................... 41
SECTION 5.1. When the Company May Merge or Transfer Assets.......... 41
SECTION 5.2. Surviving Entity Substituted........................... 42
ARTICLE 6 DEFAULTS AND REMEDIES.................................. 43
SECTION 6.1. Events of Default...................................... 43
SECTION 6.2. Acceleration........................................... 45
SECTION 6.3. Other Remedies......................................... 45
SECTION 6.4. Waiver of Past Defaults................................ 46
SECTION 6.5. Control by Holders..................................... 46
SECTION 6.6. Limitation on Suits.................................... 46
SECTION 6.7. Rights of Holders to Receive Payment................... 47
SECTION 6.8. Collection Suit by Trustee............................. 47
SECTION 6.9. Trustee May File Proofs of Claim....................... 48
SECTION 6.10. Priorities............................................. 48
ARTICLE 7 TRUSTEE................................................ 49
SECTION 7.1. Duties of Trustee...................................... 49
SECTION 7.2. Rights of Trustee...................................... 50
SECTION 7.3. Individual Rights of Trustee........................... 50
SECTION 7.4. Trustee's Disclaimer................................... 51
SECTION 7.5. Notice of Defaults..................................... 51
SECTION 7.6. Reports by Trustee to Holders.......................... 51
SECTION 7.7. Compensation and Indemnity............................. 51
SECTION 7.8. Replacement of Trustee................................. 52
SECTION 7.9. Successor Trustee by Merger............................ 53
SECTION 7.10. Eligibility; Disqualification.......................... 53
SECTION 7.11. Preferential Collection of Claims Against the Company.. 53
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Page
ARTICLE 8 DISCHARGE OF INDENTURE; LEGAL DEFEASANCE AND COVENANT
DEFEASANCE............................................. 54
SECTION 8.1. Legal Termination...................................... 54
SECTION 8.2. Company's Option to Effect Legal Defeasance or
Covenant Defeasance................................. 54
SECTION 8.3. Legal Defeasance and Discharge......................... 54
SECTION 8.4. Covenant Defeasance.................................... 54
SECTION 8.5. Conditions to Legal Defeasance and Covenant Defeasance. 55
SECTION 8.6. Reinstatement.......................................... 56
SECTION 8.7. Repayment to the Company............................... 56
SECTION 8.8. Survival of Holders' Conversion Rights and Company's
Obligation to Provide Reports....................... 56
ARTICLE 9 AMENDMENTS............................................. 57
SECTION 9.1. Without Consent of Holders............................. 57
SECTION 9.2. With Consent of Holders................................ 57
SECTION 9.3. Supplemental Indentures. .............................. 58
SECTION 9.4. Revocation and Effect of Consents, Waivers and Actions. 58
SECTION 9.5. Notation on or Exchange of the Notes. ................. 58
SECTION 9.6. Trustee to Sign Supplemental Indentures................ 59
SECTION 9.7. Effect of Amendments and Supplemental Indentures....... 59
ARTICLE 10 MISCELLANEOUS.......................................... 59
SECTION 10.1. Trust Indenture Act Controls........................... 59
SECTION 10.2. Notices................................................ 59
SECTION 10.3. Communication by Noteholder with Other Noteholders..... 60
SECTION 10.4. Certificate and Opinion as to Conditions Precedent..... 60
SECTION 10.5. Statements Required in Certificate or Opinion.......... 61
SECTION 10.6. Severability Clause.................................... 61
SECTION 10.7. Rules by Trustee, Paying Agent and Registrar........... 61
SECTION 10.8. Legal Holidays......................................... 61
SECTION 10.9. Governing Law; Submission to Jurisdiction.............. 61
SECTION 10.10. Indenture Controls..................................... 62
SECTION 10.11. Successors............................................. 62
SECTION 10.12. Multiple Originals; Counterparts....................... 62
ARTICLE 11 CONVERSION OF NOTES.................................... 62
SECTION 11.1. Conversion Privilege and Conversion Price.............. 62
SECTION 11.2. Exercise of Conversion Privilege....................... 63
SECTION 11.3. .................................................... 64
SECTION 11.4. Adjustment of Conversion Price......................... 64
SECTION 11.5. Notice of Adjustments of Conversion Price.............. 70
SECTION 11.6. Notice of Certain Partnership Action................... 70
SECTION 11.7. Issuance of Class A Interests.......................... 71
SECTION 11.8. Taxes on Conversions................................... 71
SECTION 11.9. Responsibility of Trustee.............................. 71
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Page
ARTICLE 12 REPRESENTATIONS AND WARRANTIES......................... 72
SECTION 12.1. Corporate/Partnership Status........................... 72
SECTION 12.2. Corporate/Partnership Power and Authority.............. 72
SECTION 12.3. No Violation........................................... 72
SECTION 12.4. Class A Interests Issuable upon Conversion of Notes.... 73
SECTION 12.5. Governmental Approvals................................. 73
SECTION 12.6. Investment Company Act; Public Utility Holding
Company Act......................................... 73
SECTION 12.7. Corporate/Partnership Structure; Capitalization........ 73
SECTION 12.8. No Default............................................. 74
SECTION 12.9. Licenses, etc.......................................... 74
SECTION 12.10. Compliance with Law.................................... 74
SIGNATURES .................................................... 75
SCHEDULE I OUTSTANDING INDEBTEDNESS............................... I-1
SCHEDULE II CONSENTS............................................... II-1
SCHEDULE III CORPORATE/PARTNERSHIP STRUCTURE; CAPITALIZATION. . .... III-1
EXHIBIT A FORM OF NOTES.......................................... A-1
EXHIBIT B CLOSING OPINION REQUIREMENTS........................... B-1
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<PAGE>
Indenture, dated as of November 20, 1996, between WORLD FINANCIAL
PROPERTIES, L.P., a Delaware limited partnership (the "Company") and The Bank of
New York, a New York banking corporation, as trustee (the "Trustee").
In furtherance of the consummation and implementation of the
transactions contemplated in the Plan, the parties agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the Company's Increasing Rate Convertible Notes due 2004 (the "Notes") issued
under this Indenture from time to time:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
"Acquisition" means the acquisition by any Acquisition Subsidiary of a
New Property or any New Property Equity Interest.
"Acquisition Subsidiary" means any Subsidiary of the Company that is
created after the date hereof specifically for the purpose of acquiring a New
Property or any New Property Equity Interest or that owns, at the time in
question, any direct or indirect interest in any such New Property or New
Property Equity Interest.
"Additional Partnership Interests" means any Partnership Interests
issued by the Company after the Effective Date, other than Class A Interests
issued upon conversion of any of the Notes or the Class B Interests outstanding
on the date hereof.
"Adjusted Tag-Along Amount" means, in respect of the Notes of any
Holder that has delivered a Tag-Along Notice relating to a particular Tag-Along
Sale, the product of (i) the maximum principal amount of Notes specified in such
Holder's Tag- Along Notice and (ii) a fraction, the numerator of which is the
actual percentage (which shall not be less than the Original Sale Percentage in
respect of such Tag-Along Sale) of all then outstanding Class A Interests
(computed on a basis that assumes all Notes (exclusive of accrued interest
thereon) have been converted to Class A Interests) that the applicable Tag-
Along Purchaser has agreed to purchase in such Tag-Along Sale and the
denominator of which is the Original Sale Percentage in respect of such
Tag-Along Sale plus the aggregate of (A) the Tag-Along Sale Percentages of each
Holder that has delivered a Tag-Along Notice in respect of such Tag-Along Sale
and (B) the Tag-Along Sale Percentages (as defined in the Partnership Agreement
as in effect on the date hereof) of each Tag-Along Partner (as defined in the
Partnership Agreement as in effect on the date hereof) in respect of such
Tag-Along Sale.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. A Person shall be deemed to "control"
(including the correlative meanings, the terms "controlling," "controlled by"
and "under common control with") a specified Person if the controlling Person
possesses (or is a member of a group (as such term
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is used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act as in effect on
the Effective Date) that possesses), directly or indirectly, the power to direct
or cause the direction of the management or policies of the specified Person,
whether through ownership of Equity Interests, by agreement or otherwise.
"Agent" means the Registrar or any Paying Agent or Conversion Agent of
the Company.
"Asset Sale" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets
(including, without limitation, (a) by way of a sale-and-leaseback, merger,
consolidation or otherwise, (b) the sale, assignment or other transfer (by
merger, consolidation or otherwise) of any Equity Interests of any Subsidiary of
that Person and (c) any amendment, waiver, modification, transfer, sale or
assignment of any Management Agreement) other than (i) the issuance by the
Company or any of its Subsidiaries of its Equity Interests in a transaction that
constitutes a Capital Infusion, (ii) the lease or sublease of any real or
personal property in the ordinary course of business to existing tenants or new
tenants in respect of space to be occupied or used by such tenant, its
Affiliates or its subtenants in any building owned by the Company or any
Subsidiary of the Company, (iii) conversion of Cash Equivalents to cash in the
ordinary course of business, (iv) the consolidation or merger of the Company or
the sale, lease, conveyance or other disposition of all or substantially all of
the assets of the Company, in each case in accordance with the provisions of
Section 5.1 hereof, (v) if such Person is the Company or any Subsidiary of the
Company, the sale, lease, conveyance or other disposition of any assets to the
Company or to any Subsidiary of the Company that is not an Acquisition
Subsidiary and that does not have outstanding any Nonrecourse Debt or (vi) the
sale, lease, conveyance or other disposition, or any other transaction or any
series of related transactions, of the character described in clauses (a), (b)
or (c) above, the gross proceeds of which do not exceed $500,000.
"Average Life" means, as of the date of determination, with respect to
any Indebtedness, the quotient obtained by dividing (i) the sum of the products
of the numbers of years from the date of determination to the dates of each
successive scheduled principal payment (assuming the exercise by the obligor of
such debt security of all unconditional (other than as to the giving of notice)
extension options of each such scheduled payment date) of such Indebtedness
multiplied by the amount of such principal payment by (ii) the sum of all such
principal payments.
"Bankruptcy Court" means the United States District Court for the
Southern District of New York having jurisdiction over the Reorganization Cases
(as defined in the Plan) and, to the extent of any reference under Section 157,
Title 28, United States Code, the unit of such District Court constituted under
Section 151, Title 28, United States Code.
"Bankruptcy Law" means Title 11 of the United States Code, or any
similar Federal or state law for the relief of debtors.
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"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification.
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which banking institutions in New York, New York are authorized by law or
required by executive order to close.
"Capital Infusion" means (i) the receipt by the Company or any
Subsidiary of the Company of Cash or other consideration for any issuance or
sale by the Company or any Subsidiary of the Company of any Equity Interest of
the Company or any Subsidiary of the Company (other than (w) the sale by the
Company or any Subsidiary of the Company of previously issued and then
outstanding Equity Interests of a Person in which the Company or the selling
Subsidiary, as the case may be, has a direct or indirect interest; (x) the
capital infusion of $75 million in Cash provided to the Company by the
Co-Proponents on the Effective Date pursuant to Section 18.12 of the Plan, (y)
the conversion of Class B Interests outstanding on the date hereof into Class A
Interests as required pursuant to the Partnership Agreement (as it exists on the
date hereof) and (z) capital contributions made by the Company or any Subsidiary
of the Company to the Company or another Subsidiary of the Company), (ii) the
receipt by the Company or any Subsidiary of the Company of Cash or other
consideration for any Indebtedness Incurred by the Company or any Subsidiary of
the Company, and (iii) any capital contribution to the Company or any Subsidiary
thereof (other than capital contributions made by the Company or any Subsidiary
of the Company to the Company or another Subsidiary of the Company); provided,
however, that none of the following shall constitute a Capital Infusion:
(a) any Emergency Capital Infusion made in the form of a
contribution to the capital of the Company, a purchase from the
Company of Equity Interests of the Company or a purchase of
Subordinated Debt from the Company;
(b) any Refinancing Transaction;
(c) any transfer of assets (other than Cash) to the Company as a
capital contribution to the Company, or in exchange for Equity
Interests of the Company or Subordinated Debt, in connection with an
Acquisition;
(d) the Incurrence of any Nonrecourse Debt issued in payment of,
or to finance, the purchase price of, and all reasonable and customary
out-of-pocket acquisition expenses actually incurred by the relevant
Acquisition Subsidiary in connection with, an Acquisition, provided
that the amount of the Nonrecourse Debt issued in connection with such
Acquisition does not exceed 80% of the purchase price of the New
Property or the New Property Equity Interest acquired in such
Acquisition;
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(e) any Cash capital contribution to the Company, or any amount
of Cash paid to the Company in exchange for Equity Interests of the
Company or Subordinated Debt, to the extent that such Cash is used to
pay a portion of the purchase price of, and all reasonable and
customary out-of-pocket acquisition expenses actually incurred by the
relevant Acquisition Subsidiary in connection with, an Acquisition
that is not paid or financed by the issuance of Nonrecourse Debt
referred to in clause (iv) above;
(f) the Incurrence by the Company of Permitted Indebtedness;
(g) the Incurrence of Indebtedness for borrowed money by the
Company or any Subsidiary of the Company so long as such Indebtedness
is, at all times, owed solely to the Company and Subsidiaries of the
Company that are not Acquisition Subsidiaries;
(h) any Nonrecourse Debt Refinancing Transaction or
(i) any Subordinated Debt Refinancing Transaction.
The amount of any Capital Infusion shall be deemed to be equal to the amount of
cash or other consideration (valued at the fair market value thereof) received
by the Company or any Subsidiary of the Company in such Capital Infusion (after
deducting therefrom all reasonable and customary out-of-pocket expenses actually
incurred by the Company or the relevant Subsidiary of the Company in connection
with such Capital Infusion); provided, however, that (A) if the Company or any
Subsidiary of the Company shall guarantee, or otherwise become contingently
liable with respect to or grant a lien on any of its assets as security for,
Indebtedness of another Person (other than a nonrecourse pledge of shares of a
class of Capital Stock (which class of Capital Stock is entitled to elect one
director) of a GP Subsidiary Owner with respect to any Office Building Property
as security for Indebtedness secured by such Office Building Property), there
shall be deemed to be a Capital Infusion in an amount equal to the principal
amount of such Indebtedness of such other Person and (B) in the case of a
transaction of the character described in clause (i), (ii) or (iii) of this
definition in which any Subsidiary of the Company that is not a Wholly-Owned
Subsidiary is the recipient of a Capital Infusion, the amount of such Capital
Infusion shall be deemed to be the excess of (1) the amount of such Capital
Infusion in the absence of this clause (B) over (2) the amount of such Capital
Infusion attributable, directly or indirectly, to Persons (other than the
Company and its Subsidiaries) that hold, directly or indirectly, Equity
Interests of such Subsidiary.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
which would at such time be so required to be capitalized on the balance sheet
in accordance with GAAP.
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock (including,
without
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limitation, common and preferred stock), excluding warrants, options or other
rights to acquire Capital Stock.
"Cash" means money or currency or a credit balance each in U.S.
dollars in a demand, savings, passbook, money market or like account with a
commercial bank, savings and loan association or like organization or a
government securities dealer, other than an account evidenced by a negotiable
certificate of deposit.
"Cash Equivalents" means (i) direct obligations of the United States
of America or any agency thereof having maturities of not more than one year
from the date of acquisition, (ii) time deposits and certificates of deposit of
any domestic commercial bank of recognized standing, having capital and surplus
in excess of $500 million, with maturities of not more than one year from the
date of acquisition, (iii) commercial paper rated at least A-1 or the equivalent
thereof by Standard & Poor's Corporation or at least P-1 or the equivalent
thereof by Moody's Investor Services, Inc., in each case maturing within one
year after the date of acquisition and (iv) shares of any money market mutual
fund, or similar fund, which invests exclusively in investments of the types
described in clauses (i) through (iii) above.
"Change in Control" means the occurrence of any of the following: (a)
any sale, lease, transfer, exchange or other disposition in one or more related
transactions of all or substantially all of (i) the assets or Equity Interests
of the Company, a Controlling Partner or the Company and its Subsidiaries (taken
as a whole) to any Person or group (as such term is used in Sections 13(d)(3)
and 14(d)(2) of the Exchange Act as in effect on the Effective Date; for
purposes of this definition the Company and the Controlling Partners shall be
deemed to be registrants within the meaning of the Exchange Act) other than to a
Person that is a Subsidiary of the Company both immediately before and
immediately after giving effect to such transactions; (b) the merger or
consolidation of the Company or a Controlling Partner with or into another
Person, or the merger of another Person into the Company or a Controlling
Partner or any other transaction, with the effect, in any such case, that (1)
the holders of Equity Interests of the Company or a Controlling Partner, as the
case may be, immediately prior to such transaction hold directly or indirectly
after such transaction 50% or less in value of the outstanding Equity Interests
of the Company, such Controlling Partner or the surviving entity, as relevant,
or (2) the Co-Proponents in the aggregate do not have the right to control
directly or indirectly (whether through ownership of Equity Interests, by
agreement or otherwise) the management and affairs of the Company, such
Controlling Partner or the surviving entity, as relevant; (c) the first date on
which the Co-Proponents in the aggregate own beneficially or of record 50% or
less in value of the outstanding Equity Interests of the Company or a
Controlling Partner; (d) the first date on or after the Effective Date on which
the Co-Proponents in the aggregate do not have the right to control directly or
indirectly (whether through ownership of Equity Interests, by agreement or
otherwise) the management and affairs of the Company and of each Controlling
Partner; or (e) the approval by a Controlling Partner or the required holders of
Equity Interests of the Company of any plan for the liquidation or dissolution
of the Company.
"Class A Interests" means Class A Units (as defined in the Partnership
Agreement (as in effect on the date hereof)) and any Equity Interests into which
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such Class A Units may be changed after the Effective Date and shall also
include Equity Interests of any successor or acquiring person referred to in
Section 11.4(c) received by or distributed to the holders of such Equity
Interests in the circumstances contemplated by Section 11.4(c).
"Class B Interests" means the Class B Units (as defined in the
Partnership Agreement (as in effect on the date hereof)) issued on the Effective
Date pursuant to Section 18.1.1 of the Plan.
"Commission" means the Securities and Exchange Commission and any
successor thereto.
"Consolidated Net Worth" of the Company means consolidated interest
holders' equity as determined in accordance with GAAP.
"Controlling Partner" means any general partner of the Company (other
than a general partner of the Company that has no authority to act on behalf of,
or to bind, the Company) or any Person exercising similar functions if the
Company is not a partnership.
"Conversion Agent" means the Trustee and any other person appointed by
the Company authorized by the Company to perform the duties of a Conversion
Agent specified in this Indenture.
"Conversion Notice" means a notice substantially in the form annexed
to the Notes.
"Convertible Securities" means evidences of indebtedness or other
securities or Equity Interests which are convertible into or exchangeable, with
or without payment of additional consideration in cash or property, for
Additional Partnership Interests, either immediately or upon the occurrence of a
specified date or a specified event.
"Co-Proponents" means, collectively, Canadian Imperial Bank of
Commerce, Dragon Holdings Limited, Citibank, N.A. and Brookfield Properties
Corporation.
"Core Properties" means, collectively, (i) that certain parcel of real
property located at 53 State Street, Boston, Massachusetts, together with the
office building and other improvements existing thereon, (ii) that certain
parcel of real property located at One Liberty Plaza, New York, New York,
together with the office building and other improvements existing thereon, (iii)
that certain parcel of real property located at 245 Park Avenue, New York, New
York, together with the office building and other improvements existing thereon,
(iv) the leasehold interest in that certain parcel of real property located at
One World Financial Center, New York, New York, together with the office
building and other improvements existing thereon, (v) the leasehold interest in
that certain parcel of real property located at Two World Financial Center, New
York, New York, together with the office building and other improvements
existing thereon, and (vi) the leasehold interest in
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that certain parcel of real property located at Four World Financial Center, New
York, New York, together with the office building and other improvements
existing thereon; and "Core Property" means any of the foregoing.
"CP Certificate" means a written certificate signed in the name of the
Company by two officers of a Controlling Partner and delivered to the Trustee.
"Current Market Price" as of any date with respect to any security
means the average of the Quoted Prices of such security for the twenty-five (25)
consecutive trading days (or, if such security is publicly traded but has been
so traded for less than twenty-five (25) consecutive trading days, such shorter
period in which such security has been publicly traded) immediately preceding
such date; provided, however, that, if an event described in Section 11.4(a)(i)
through 11.4(a)(iii) occurs with respect to such security during the period from
the first of such consecutive trading days through the last of such consecutive
trading days, the computation of Current Market Price shall be appropriately
adjusted to take account of such event. "Quoted Price" of any security for any
date shall be the last reported sales price (or, in case no such sale takes
place on such date, the average of the reported closing bid and ask of prices)
of such security as reported by the principal national securities exchange on
which such security is listed or traded, or as reported by the NASDAQ National
Market System, or if such security is neither so reported nor listed or traded,
the average of the last reported bid and ask prices of such security in the
over-the-counter market on such date. If such security is not listed or traded
on any national securities exchange or quoted in the over-the-counter market,
the Current Market Price of such security shall be deemed to be the fair market
value of such security as determined in good faith by the Board of Directors of
a Controlling Partner and as evidenced by a Board Resolution, which resolution
shall be delivered as soon as practicable thereafter to the Trustee; provided,
however, that if the Current Market Price of such security is being valued in
connection with any Equity Interests owned or purchased by or issued, delivered
or otherwise distributed to any of the Company's Affiliates or its Related
Persons, then, unless such Equity Interests are being valued in connection with
a transaction in which a greater number of New Equity Securities are being
issued, delivered or otherwise distributed on the same terms and for the same
consideration to Persons that are not Affiliates or Related Persons of the
Company, the Current Market Price of such security shall be determined by the
opinion of a nationally recognized investment banking firm retained by the
Company, which opinion shall be delivered by the Company as soon as practicable
after its issuance or delivery to the Trustee.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator, custodian or similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Effective Date" means the date of this Indenture.
"Emergency Capital Infusion" means any Incurrence by the Company of
Subordinated Debt or any capital contribution to the Company, (i) the proceeds
of which are utilized by the Company or any Subsidiary of the Company solely to
cure an
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existing default or prevent an imminent default on any Indebtedness secured
(directly or indirectly) by any interest in a Core Property or any other
Material Asset of the Company or such Subsidiary and (ii) as to which
transaction the Company shall have certified to the Trustee that, (a) in the
absence of such transaction the cash on hand then available to the Company and
its Subsidiaries (including any credit which may then be available under any
line of credit constituting Permitted Indebtedness) is insufficient to effect
such cure or prevent such imminent default and (b) the proceeds of such
transaction do not exceed by more than 10% the amount reasonably estimated by
the Company to be necessary to effect such cure or prevent such imminent
default.
"Equity Interests" means (a) Capital Stock, limited or general
partnership interests or units, interests in limited liability companies, joint
venture interests and other ownership interests in any Person, and (b) warrants,
options or other rights to acquire any of the above (including debt exchangeable
or convertible into any of the above).
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations of the Commission promulgated
thereunder.
"Excess Proceeds" means the Net Cash Proceeds of any Asset Sale that
are not used (or deemed to have been used) by the Company or the relevant
Subsidiary of the Company as provided in subsections (a), (b) or (c) of Section
4.10 of this Indenture within 180 days after receipt of same by the Company or
any Subsidiary of the Company.
"Exempt Subsidiary" means (a) any Significant Subsidiary that would
not be a Subsidiary if (i) it were not the record or beneficial owner, or the
operator or manager, of a Core Property referred to in clause (i) or (iv) of the
definition of Core Property, and (ii) it did not have any direct or indirect
interest in a Person that is the record or beneficial owner, or the operator or
manager, of a Core Property referred to in clause (i) or (iv) of the definition
of Core Property and (b) any Person referred to in subclause (ii)(x) or (ii)(y)
of this clause (b) if (i) by reason of a sale of an interest therein by the
Company or any of its Subsidiaries, the Company's direct and indirect Equity
Interest in any Core Property referred to in clause (ii), (iii), (v) or (vi) of
the definition of Core Property is less than 50% of the Company's direct or
indirect interest in such Core Property as of the date hereof and (ii) all
Persons (on a combined basis assuming that all of such Persons were required to
be included in the consolidated financial statements of the Company) in which
the Company has any direct or indirect interest which (x) are the record or
beneficial owner, or the operator or manager, of such Core Property, or (y) have
any direct or indirect interest in any Person that is the record or beneficial
owner, or the operator or manager, of such Core Property, would not (if
considered to be a single Subsidiary) be a Significant Subsidiary, as that term
is defined in Regulation S-X of the Securities Act of 1933, as in effect on the
date hereof.
"4% Holder" means any Holder which, if all Notes held by such Holder
were converted into Class A Interests immediately prior to the close of business
on the day immediately prior to the Tag-Along Notice Date, would, including any
Unrestricted
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Units (as such term is defined in the Partnership Agreement as in effect on the
date hereof) as to which such Holder is a Record Holder (as such term is defined
in the Partnership Agreement as in effect on the date hereof), hold a number of
Class A Interests representing at least 4% of the Class A Interests then
outstanding.
"Full Payment Triggering Date" means the date upon which the Company
shall irrevocably deposit with the Paying Agent the purchase price for 100% of
the Notes in a Full Payment Triggering Offer.
"Full Payment Triggering Offer" means an offer by the Company to
purchase 100% of the then outstanding Notes pursuant to the terms and provisions
of Section 3.7 of this Indenture.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession.
"GP Subsidiary Owner" means, with respect to any Office Building
Property, any Subsidiary of the Company that (i) is a corporation, (ii) acts as
the general partner of the record or beneficial owner of such Office Building
Property and (iii) does not have any direct or indirect Equity Interest
exceeding 1.5% in the record or beneficial owner of such Office Building
Property.
"Holder" or "Noteholder" means a Person in whose name the Notes are
registered on the Register.
"Indebtedness" of any Person means, without duplication, (i) all
obligations of such Person for borrowed money or for the deferred purchase price
of property or services (other than trade payables incurred in the ordinary
course of business that are current liabilities in accordance with GAAP), (ii)
all obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (iii) all reimbursement obligations of such Person in respect of
letters of credit (whether or not such letters of credit have been drawn upon)
or bankers' acceptances, (iv) all Capital Lease Obligations of such Person, (v)
all Indebtedness of others guaranteed by such Person or for which such Person is
otherwise contingently liable, and (vi) all Indebtedness of others secured by a
Lien on any property of such Person, whether or not such Indebtedness is assumed
by such Person.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof, including the provisions of the TIA
that, to the extent provided herein or required by the TIA, are deemed to be a
part hereof.
"Investment" means, when used with respect to any Person, any direct
or indirect advance, loan or other extension of credit (other than the creation
of receivables in the ordinary course of business) or capital contribution by
such Person (by means of transfers of cash or other property to others or
payments for property or services
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for the account or use of others, or otherwise) to any other Person, or any
direct or indirect purchase or other acquisition by such Person of a beneficial
interest in Capital Stock, bonds, notes, debentures, Equity Interests or other
securities issued by any other Person.
"Lien" means, with respect to any property, any mortgage, pledge,
security interest, charge, hypothecation, collateral assignment, deposit
agreement, encumbrance, lien (statutory or otherwise), or security agreement of
any kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing and the filing of
any financing statement, other than notice filings not perfecting a security
interest, under the Uniform Commercial Code or comparable law of any
jurisdiction, domestic or foreign, in respect of any of the foregoing).
"Management Agreement" means any agreement that provides for or
otherwise permits the Company, any Subsidiary of the Company or any other
Affiliate of the Company that is controlled, directly or indirectly, by the
Company to receive any management or operating fee or leasing commission in
respect of services provided to or in respect of a Core Property or in respect
of any other real property having a value in excess of $20 million.
"Material Adverse Effect" means any material adverse effect on (a) the
business, condition (financial or otherwise), operations, properties or results
of operation of the Company or any Significant Subsidiary, either individually
or in the aggregate, (b) the rights and remedies of the Noteholders or the
Trustee hereunder or (c) the ability of the Company to perform its obligations
hereunder.
"Material Asset" means any asset of the Company or its Subsidiaries
having a fair market value (as determined in good faith by a Controlling Partner
of the Company) of at least $20,000,000.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds of such Asset Sale in the form of Cash or Cash Equivalents, including
payments in respect of deferred payment obligations when received in the form of
Cash or Cash Equivalents, casualty loss insurance proceeds (to the extent not
applied to restore the affected property), condemnation awards (to the extent
not applied to restore the affected property), and proceeds from the conversion
of other property received in connection with any Asset Sale when converted to
Cash or Cash Equivalents, net of (i) brokerage commissions and all other
customary and reasonable fees and expenses directly related to such Asset Sale
actually paid by the seller of such asset(s), (ii) provision for all taxes paid
or payable directly as a result of such Asset Sale and, (iii) amounts to be
applied to the repayment of Indebtedness secured by a Lien on the asset or
assets that are the subject of such Asset Sale.
"New Property" means a Class A office building containing at least
400,000 square feet of gross floor area located in the United States or Canada.
"New Property Equity Interest" means Capital Stock, limited or general
partnership interests or units, interests in limited liability companies, joint
venture
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interests and other ownership interests in any Person the principal assets of
which consist of one or more New Properties.
"Nonrecourse Debt" means Indebtedness of an Acquisition Subsidiary
that owns a New Property or New Property Equity Interests acquired in connection
with an Acquisition, provided that (i) such Acquisition Subsidiary shall at no
time have any assets which in the aggregate are material in respect of such
Acquisition Subsidiary other than the New Property or New Property Equity
Interests acquired in such Acquisition and assets used in connection with the
operation of such New Property, and (ii) neither the Company nor any Subsidiary
of the Company shall at any time as to such Indebtedness (a) provide credit
support of any kind (whether by undertaking, agreement or instrument
constituting Indebtedness or otherwise) or (b) be directly or indirectly liable
(as a guarantor, partner or otherwise); provided, however, that the foregoing
provisions of this definition shall not be construed to prohibit the Company or
any of its Subsidiaries from providing to any lender an environmental or similar
indemnity in customary form or from pledging, on a nonrecourse basis, shares of
a class of Capital Stock (which class of Capital Stock is entitled to elect one
director ) of the GP Subsidiary Owner with respect to such New Property.
"Nonrecourse Debt Refinancing Transaction" means any Incurrence of
Nonrecourse Debt by any Acquisition Subsidiary, the net proceeds of which are
used solely to Refinance Nonrecourse Debt of such Acquisition Subsidiary;
provided, however, that the principal amount of Nonrecourse Debt so Incurred
shall not exceed the sum of (i) the then outstanding principal amount, and any
prepayment premiums owing in respect, of the Nonrecourse Debt so Refinanced,
(ii) interest and accrued expenses owing in respect of the Nonrecourse Debt so
Refinanced, in each case accrued from the first day of the month in which such
refinancing occurs, and (iii) the amount of all reasonable and customary
transaction expenses actually incurred by the relevant Acquisition Subsidiary in
connection with such Nonrecourse Debt Refinancing Transaction.
"Notes" means the Increasing Rate Convertible Notes due 2004 of the
Company in the form of Exhibit A hereto issued under this Indenture in
accordance with Section 2.1.
"Noteholder" or "Holder" means a Person in whose name Notes are
registered on the Register.
"Office Building Property" means any Core Property or any New
Property.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be reasonably acceptable to the Trustee
and which opinion shall be reasonably satisfactory to the Trustee.
"Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership dated as of even date herewith by and among World Financial
Properties, Inc., JMB 245 Park Avenue Holding Company, LLC, Battery Park
Holdings Inc., Olympia & York Tower B Company, The Canadian Imperial Bank of
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Commerce, WFP Holdings Limited Partnership, Emerald LP Holdings, Inc. and the
other persons and entities identified on Schedule I thereto.
"Partnership Interests" means the Class A Interests and any Equity
Interest into which such Class A Interests may be changed after the Effective
Date and any other Equity Interest of the Company (regardless of how
denominated) that has the right (subject to any prior rights of any other class,
type or form of Equity Interest) to participate in any distribution of the
assets or earnings of the Company without limit as to per unit of Equity
Interest amount, and shall also include Equity Interests of any successor or
acquiring Person referred to in Section 11.4(c) received by or distributed to
the holders of Equity Interests of the Company in the circumstances contemplated
by Section 11.4(c).
"Permitted Indebtedness" means Indebtedness of the Company that is
outstanding to provide working capital or other funds reasonably determined to
be necessary for the day to day operations of the Company and its Subsidiaries;
provided, however, that (i) such Indebtedness is not secured by any Lien, (ii)
the total principal amount of such Indebtedness outstanding at any time shall
not exceed $15 million, and (iii) for a period of at least 30 consecutive days
at any time during the immediately preceding 12 months, the aggregate
outstanding principal amount of Permitted Indebtedness shall be zero; and
provided further, that Permitted Indebtedness does not include any Indebtedness,
the proceeds of which are used (in whole or in part) to Refinance Nonrecourse
Debt or Subordinated Debt or for any purpose other than to provide working
capital or other funds necessary for the day to day operations of the Company
and its Subsidiaries.
"Person" means any individual, corporation, partnership, joint
venture, incorporated or unincorporated association, joint-stock company,
limited liability company, trust, unincorporated organization or government or
other agency or political subdivision thereof or other entity of any kind.
"Plan" means the Third Amended Joint Plan of Reorganization, dated
September 12, 1996.
"Record Date," when used with respect to any Interest Payment Date,
shall mean the fifteenth day of the month immediately preceding such Interest
Payment Date, whether or not such day is a Business Day.
"Redeemable Interests" means any partnership interests of the Company
that, by their terms (or by the terms of any security into which they are
convertible or for which they are exchangeable at the option of the holder
thereof), or upon the happening of any event, mature or are mandatorily
redeemable, in whole or in part, pursuant to a sinking fund obligation or
otherwise, or, at the option of the holder thereof, are redeemable in whole or
in part, or are exchangeable into a security that is owned by the Company or any
of its Subsidiaries or into Indebtedness of, or that is owned by, the Company or
any of its Subsidiaries, in each case on or prior to the scheduled maturity date
of the Notes.
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"Redemption Date" or "redemption date" means the date specified for
redemption of a Note in accordance with the terms of the Notes and this
Indenture.
"Redemption Price" or "redemption price" shall have the meaning set
forth in Section 3.1.
"Refinancing Transaction" means any Incurrence of Indebtedness by the
Company or any Subsidiary of the Company, the net proceeds of which are used
solely to Refinance Indebtedness (other than Nonrecourse Debt or Subordinated
Debt) of the Company or any Subsidiary of the Company that is not an Acquisition
Subsidiary; provided, however, that (i) the principal amount of Indebtedness so
Incurred by the Company shall not exceed the sum of (a) the then outstanding
principal amount, and any prepayment premiums owing in respect, of the
Indebtedness of the Company that is Refinanced by the Indebtedness so Incurred
by the Company, (b) interest and accrued expenses owing in respect of the
Indebtedness of the Company that is so Refinanced, in each case accrued from the
first day of the month in which such refinancing occurs, and (c) the amount of
all reasonable and customary transaction expenses actually incurred by the
Company in connection with such Refinancing Transaction; and (ii) the principal
amount of Indebtedness so Incurred by the Company and its Subsidiaries shall not
exceed the sum of (a) the then outstanding principal amount, and any prepayment
premiums owing in respect, of the Indebtedness of the Company and its
Subsidiaries that is Refinanced by the Indebtedness so Incurred by the Company
and its Subsidiaries, (b) interest and accrued expenses owing in respect of the
Indebtedness of the Company and its Subsidiaries that is so Refinanced, in each
case accrued from the first day of the month in which such refinancing occurs,
and (c) the amount of all reasonable and customary transaction expenses actually
incurred by the Company and its Subsidiaries (other than any Acquisition
Subsidiary) in connection with such Refinancing Transaction; and, provided
further, that (x) all Indebtedness so Incurred ranks, relative to the Notes, no
more senior than the Indebtedness being Refinanced thereby and bears interest at
or below a market rate; (y) no Indebtedness so Incurred shall be secured by any
Lien on any property of the Company except (1) to the extent that there is a
Lien on such property as security for the Indebtedness being Refinanced and (2)
that Indebtedness secured by an Office Building Property may also be secured by
a nonrecourse pledge of shares of a class of Capital Stock (which class of
Capital Stock is entitled to elect one director) of the GP Subsidiary Owner with
respect to such Office Building Property, and (z) all Indebtedness so Incurred
shall have an Average Life not less than, and a stated maturity (including any
extensions available at the option of the Company) no earlier than, the Average
Life and stated maturity (including any extensions available at the option of
the Company), respectively, of the Indebtedness being Refinanced.
"Related Person" of any specified Person means (i) any Affiliate of
such Person (other than a Subsidiary of the Company), (ii) any Person that owns,
directly or indirectly, 20% or more of any then outstanding class, series or
type of Equity Interests (other than the Notes) of such Person, (iii) any Person
that owns, directly or indirectly, 10% of more of any then outstanding class,
series or type of Equity Interests of any Controlling Partner or of any other
Person that is a general partner of the Company, or (iv) any Affiliate of a
Person described in clause (i), (ii) or (iii) of this definition (other than a
Subsidiary of the Company).
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"Securities Act" means the Securities Act of 1933, as amended from
time to time, and the rules and regulations of the Commission thereunder.
"Significant Subsidiary" means any Subsidiary of the Company that (i)
is the record or beneficial owner, or the operator or manager, of any of the
Core Properties, (ii) owns, directly or indirectly, any Equity Interest in any
Person that is the record or beneficial owner, or the operator or manager, of
any of the Core Properties, or (iii) is a Significant Subsidiary, as that term
is defined under Regulation S-X of the Securities Act of 1933, as in effect on
the date hereof.
"Special Offer Purchase Price" for any Notes means a price equal to
100% of the principal amount of such Notes, plus accrued and unpaid interest to
the Special Offer Purchase Date.
"Stated Maturity Date," when used with respect to the Notes, means the
date specified in the Notes as the fixed date on which the principal amount of
the Notes is due and payable.
"Subordinated Debt" means Indebtedness of the Company that is not
secured by any Lien, is not guaranteed, directly or indirectly, by any
Subsidiary of the Company and is fully subordinated in right of payment
(including to post-petition interest, whether or not allowed in any bankruptcy
or similar proceeding) to all obligations of the Company under the Notes and
this Indenture, and, so long as any Notes are outstanding, as to which no
payment shall be required to be made or shall be made (including in respect of
principal, interest or any other amounts), and no rights or remedies may be
exercised by any holder of such Subordinated Debt until 91 days after the
earlier of (i) payment in full of the Notes or (ii) the Full Payment Triggering
Date; provided, that in either case no bankruptcy or similar proceeding shall
have been commenced by or against the Company during such 91 day period.
"Subordinated Debt Refinancing Transaction" means any Incurrence of
Subordinated Debt by the Company, the net proceeds of which are used solely to
Refinance Subordinated Debt; provided, however, that the principal amount of
Subordinated Debt so Incurred shall not exceed the sum of (i) the then
outstanding principal amount, and prepayment premiums owing in respect, of the
Subordinated Debt so Refinanced, (ii) interest and accrued expenses owing in
respect of such Subordinated Debt, in each case accrued from the first day of
the month in which such refinancing occurs, and (iii) the amount of all
reasonable and customary transaction expenses actually incurred by the Company
in connection with such Subordinated Debt Refinancing Transaction.
"Subsidiary" of any Person means any Person of which more than 50% of
the total voting power of shares of Capital Stock or other Equity Interests then
entitled (without regard to the occurrence of any contingency) to vote generally
in the election of directors, managers, trustees or general or managing partner
thereof or the right or power to direct the management or policies thereof
(through control of the relevant general partner, by contract or otherwise) is
at the time owned, controlled or otherwise possessed, directly or indirectly, by
such Person or one or more of the other Subsidiaries of
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such Person or any combination thereof. Notwithstanding the foregoing, the
Subsidiaries of the Company shall include each Person in which the Company owns
directly or indirectly any Equity Interest, but only if such Person (i) is the
record or beneficial owner, or the operator or manager, of any of the Core
Properties, or (ii) owns directly or indirectly any Equity Interest in any
Person that is the record or beneficial owner, or the operator or manager, of
any of the Core Properties; provided, however, that, for purposes of the
provisions of Article 4 hereof, no Person that is not then an Affiliate that is
directly or indirectly controlled by the Company shall be deemed to be a
Subsidiary of the Company by reason of the provisions of this sentence.
"Subsidiary Owner" means, with respect to any Office Building
Property, a Subsidiary of the Company that is the record or beneficial owner of,
or that owns, directly or indirectly, any Equity Interest in the record or
beneficial owner of, such Office Building Property.
"Tax Advance" means an advance to be made by the Company to a claims
reserve established in accordance with Section 20 of the Plan in the event that
such reserve does not have sufficient Cash to pay required taxes.
"TIA" means the Trust Indenture Act of 1939, as amended and as in
effect on the date of this Indenture; provided, however, that in the event the
TIA is amended after such date, TIA means, to the extent required by any such
amendment, the TIA as so amended.
"TIAA" means Teachers Insurance and Annuity Association of America.
"TIAA Note" means the Promissory Note due _____, 1999 of [New Tower A
LP] issued to TIAA, in the original principal amount of $3 million.
"Trust Officer," when used with respect to the Trustee, means any vice
president, any assistant vice president, any assistant secretary, any assistant
treasurer, any trust officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above-designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Trustee" means the party named as the "Trustee" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor.
"Wholly Owned Subsidiary" means any Subsidiary of the Company, all of
the outstanding Capital Stock and other Equity Interests of which is owned by
the Company (either directly or indirectly through Wholly Owned Subsidiaries).
"Withholding Advances" means amounts paid by the Company, on behalf of
a partner in the Company or an assignee of an Equity Interest in the Company, in
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respect of any amount that the Company determines in its reasonable judgment is
required to be withheld under applicable law in connection with the interest of
such partner in the Company or its assignee, which amounts have not been paid or
otherwise satisfied (including by way of withholding, offset or deduction
against the interest of such partner or assignee) by such partner or assignee.
SECTION 1.2. Other Definitions.
Defined
Term in Section
"Acceleration Notice"................................... 6.2
"Act"................................................... 1.5
"Capital Infusion Offer"................................ 4.17
"Change in Control Offer"............................... 4.9
"Commission Reports".................................... 4.2
"Conversion Date"....................................... 11.2
"Conversion Price"...................................... 11.1
"Covenant Defeasance"................................... 8.4
"Defaulted Interest".................................... 2.12
"Event of Default"...................................... 6.1
"Excess Proceeds Offer"................................. 4.10
"Group"................................................. 4.19
"Incur" ................................................ 4.7
"Interest Payment Date"................................. 2.1
"Legal Defeasance"...................................... 8.3
"Legal Holiday"......................................... 10.8
"Majority Interest"..................................... 4.19
"Majority Tag-Along Sale"............................... 4.19
"Original Sale Percentage".............................. 4.19
"Paying Agent".......................................... 2.3
"Qualifying Interest"................................... 4.19
"Qualifying Tag-Along Sale"............................. 4.19
"Redemption Price"...................................... 3.1
"Refinance"............................................. 4.7
"Refinancing Indebtedness".............................. 4.7
"Register".............................................. 2.3
"Registrar"............................................. 2.3
"Special Offer"......................................... 3.7
"Special Offer Amount".................................. 3.7
"Special Offer Payment Date"............................ 3.7
"Special Offer Triggering Event"........................ 3.7
"Subordinated Debt Refinancing Indebtedness"............ 4.7
"Surviving Entity"...................................... 5.1
"Tag-Along Notice"...................................... 4.19
"Tag-Along Notice Date"................................. 4.19
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"Tag-Along Purchaser"................................... 4.19
"Tag-Along Sale"........................................ 4.19
"Tag-Along Sale Date"................................... 4.19
"Tag-Along Sale Notice"................................. 4.19
"Tag-Along Sale Percentage"............................. 4.19
"Tag-Along Sellers"..................................... 4.19
"Wholly Owned Affiliate"................................ 4.19
SECTION 1.3. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, such provision is, to
the extent required by the TIA, incorporated by reference in and made a part of
this Indenture. To the extent required by the TIA, all TIA terms used in this
Indenture that are defined by the TIA, defined by TIA reference to another
statute or defined by Commission rule have the meanings assigned to them by such
definitions.
SECTION 1.4. Rules of Construction. Unless the context otherwise
requires:
(1) A term has the meaning assigned to it herein, whether defined
expressly or by reference;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including, without limitation;
(5) words in the singular include the plural, and words in the plural
include the singular; and
(6) "herein," "hereof" and other words of similar nature refer to this
Indenture as a whole and not to any particular or individual article, section or
part of an article or section (unless the context clearly otherwise requires).
SECTION 1.5. Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing, in which instruments such Holders shall certify as to
whether they are Affiliates of the Company; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of Holders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such
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agent shall be sufficient for any purpose of this Indenture and conclusive in
favor of the Trustee and the Company if made in the manner provided in this
Section.
(2) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee reasonably
deems sufficient.
(3) The ownership of the Notes shall be proved by the Register as of
the record date for such action.
(4) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other act, the Company may,
at its option, by or pursuant to resolutions of its Controlling Partners, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of the Notes have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act; provided
that no such authorization, agreement or consent by the Holders on such record
date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture or such authorization, agreement or consent not
later than six months after the record date.
(5) In connection with every Act of Holders and otherwise as
reasonably requested by the Trustee (but in any case no less frequently than
semi-annually), the Company shall be required to deliver a CP Certificate which
identifies each Note (or portion thereof) held of record or beneficially by or
for each Affiliate of the Company or any Subsidiary of the Company (as of the
relevant record date, if any). For all purposes hereunder, Notes held in the
Subclass 7.11.1 Disputed Claims Debt/Equity Escrow (as defined in the Plan) and
all other Notes held by the Disbursing Agent (as defined in the Plan), including
in its capacity as escrow agent, shall be deemed to be held by an Affiliate of
the Company.
ARTICLE 2.
THE NOTES
SECTION 2.1. Form and Dating. The Notes and the Trustee's certificate
of authentication thereon shall be substantially in the form of Exhibit A
hereto. The Notes may have notations, legends or endorsements required by law,
stock exchange rules or agreements to which the Company is subject, if any. The
Company shall approve the form of the Notes and any notation, legend or
endorsement thereon, and such approval shall be evidenced by the execution of
such Notes by a Controlling Partner. The Notes shall be dated the date of their
authentication. The Notes shall bear interest from the earlier of the Effective
Date and December 1, 1996 at the rate per annum provided therein, payable
quarterly on February 1,
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May 1, August 1 and November 1 of each year, commencing with the first such date
after the Effective Date (each such date, an "Interest Payment Date"), shall
mature on May 1, 2004, and shall be issuable as registered Notes without coupons
in denominations of $1,000 and any integral multiple thereof.
The terms and provisions contained in the form of the Notes, annexed
hereto as Exhibit A, shall constitute, and are hereby expressly made, a part of
this Indenture. To the extent applicable, the Company and the Trustee by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
SECTION 2.2. Execution and Authentication; Aggregate Principal Amount.
Two officers of a Controlling Partner shall sign the Notes for the Company by
facsimile or manual signature. The Controlling Partner's corporate seal, if any,
may be reproduced or imprinted on the Notes.
If a Person whose signature is on the Notes no longer holds that
office or position at the relevant Controlling Partner at the time the Trustee
authenticates the Notes, the Notes shall nevertheless be valid. In addition, if
a Person does not hold an office or position at the time the Notes are
authenticated, but holds such office or position on or prior to the delivery of
the Notes, the Notes shall nevertheless be valid. If the Controlling Partner
whose officers signed the Notes for the Company is no longer a Controlling
Partner at the time the Trustee authenticates the Notes, the Notes shall
nevertheless be valid.
The Notes shall not be valid until the Trustee manually signs the
certificate of authentication on the Notes. The Trustee's signature shall be
conclusive evidence that the Notes have been authenticated under this Indenture.
The Trustee shall authenticate for original issuance up to $__________
in aggregate principal amount of Notes upon receipt of (i) a written order of
the Company signed by two officers of a Controlling Partner and (ii) an Opinion
of Counsel addressed to the Trustee and the Noteholders in substantially the
form attached hereto as Exhibit B. The written order shall specify the amount of
the Notes to be authenticated, the date on which the Notes are to be
authenticated, the names, addresses and denominations in which the Notes shall
be registered and to whom the Notes shall be delivered. The aggregate principal
amount of the Notes outstanding at any time under this Indenture may not exceed
$__________ , except as provided in Section 2.7 of this Indenture.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate the Notes, which authenticating agent shall be
compensated by the Company. Unless limited by the terms of such appointment, an
authenticating agent may authenticate the Notes whenever the Trustee may do so.
Except as provided in the preceding sentence, each reference in this Indenture
to authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Agent to deal with the Company
or any Affiliate of the Company.
SECTION 2.3. Registrar and Paying Agent. The Company shall maintain an
office or agency within the City of New York, Borough of Manhattan, where the
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Notes may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where the Notes may be presented for
payment ("Paying Agent"). Unless otherwise designated by the Company, the
Company's office or agency maintained for such purposes in the City of New York,
Borough of Manhattan, will be the office of the Trustee. The Notes will be
payable both as to principal and interest at the office of the Paying Agent, or,
at the option of the Company, payment of interest may be made by check mailed to
the Holders of the Notes at their respective addresses set forth in the
Register; provided, however, that upon the written request of any Holder that
holds at least $250,000 in aggregate outstanding principal amount of Notes, and
notwithstanding anything contained in this Indenture or in the Notes to the
contrary, the Company shall pay all amounts from time to time becoming due on or
in respect of such Notes by wire transfer or other commercially reasonable
method specified in such written request and at the address specified for such
purpose in such written request, or by wire transfer or other commercially
reasonable method and at such other address as such Holder may from time to time
specify to the Company in writing for such purpose; provided, further that, in
the case of all payments other than interest, such Notes must first be
surrendered as a condition to the right to receive payment. The Registrar shall
keep a register of the Notes, the names and addresses of the Noteholders and of
the transfer and exchange of the Notes (the "Register"). The Company may have
one or more additional Paying Agents. The term "Paying Agent" includes any
additional Paying Agent. Notwithstanding anything to the contrary contained
herein, neither the Company nor any Subsidiary or Affiliate of the Company may
serve as the Paying Agent.
The Company shall enter into an appropriate written agency agreement
with any Agent not a party to this Indenture. Each such agreement shall
implement the provisions of this Indenture that relate to such Agent and shall
incorporate the provisions of the TIA. The Company shall give prompt written
notice to the Trustee and the Holders of the name and address of any such Agent
and any change in the address of such Agent. The Company may change an Agent
without prior notice to the Holders. If the Company fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to receive appropriate compensation therefor in accordance with Section 7.7 of
this Indenture.
The Company initially appoints the Trustee to act as Conversion Agent,
Registrar and Paying Agent.
SECTION 2.4. Paying Agent To Hold Money in Trust. The Company shall
require each Paying Agent other than the Trustee to agree in writing that such
Paying Agent shall hold in trust in immediately available funds for the benefit
of Noteholders all money held by the Paying Agent for the payment of principal,
premium, if any, or interest on the Notes, and such Paying Agent shall notify
the Trustee in writing of any default by the Company in making any such payment.
The Company at any time may require a Paying Agent to pay all money held by it
as Paying Agent to the Trustee and account for any funds disbursed, and the
Trustee may at any time during the continuance of any payment Default, upon
written request to a Paying Agent, require such Paying Agent to pay all money
held by it as Paying Agent to the Trustee and to account for any funds
disbursed. Upon doing so, the Paying Agent shall have no further liability for
the money so paid over to the Trustee.
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SECTION 2.5. Noteholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Noteholders and shall otherwise comply with the
provisions of TIA ss. 312(a). If the Trustee is not the Registrar, the Company
shall furnish to the Trustee at least five Business Days before each Interest
Payment Date and at such other times as the Trustee may request in writing a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of the Noteholders, and the Company shall otherwise
comply with the provisions of TIA ss. 312(a).
The Trustee shall be entitled to rely upon a certificate of the
Registrar, the Company or another Paying Agent, as the case may be, as to the
names and addresses of the Noteholders and the principal amount of the Notes.
SECTION 2.6. Transfer and Exchange.
(a) Transfer and Exchange of the Notes. The transfer and exchange of
the Notes shall be in accordance with this Indenture.
(b) General Provisions Relating to Transfers and Exchanges of the
Notes.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Notes at the
Company's request in accordance with the provisions of Section
2.2 hereof.
(ii) No service charge shall be made to a Holder for any registration
of transfer or exchange, but the Company may require from the
Holder payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge
payable upon exchanges, which shall be paid by the Company).
(iii) All Notes issued upon any registration of transfer or exchange
of the Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Notes surrendered upon such registration
of transfer or exchange.
(iv) Prior to due presentment for the registration of a transfer of
the Notes, the Trustee, any Agent and the Company may deem and
treat the Person in whose name the Notes are registered as the
absolute owner of the Notes for the purpose of receiving payment
of principal of, interest on, and premium, if any, on the Notes
and neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary.
SECTION 2.7. Replacement Notes. If a mutilated Note is surrendered to
the Trustee or if the Company and the Trustee receive evidence to their
satisfaction that a Note has been lost, destroyed or wrongfully taken, the
Company shall issue a replacement Note, and the Trustee shall authenticate such
replacement Note if the Trustee's requirements
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are met. If required by the Trustee or the Company, an indemnity bond shall be
provided by the Noteholder that is sufficient in the judgment of the Trustee and
the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss which any of them may suffer if the Note is
replaced. The Company and the Trustee may charge such Holder for their expenses
in replacing the Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
SECTION 2.8. Outstanding Notes. Notes outstanding at any time are all
Notes that have been authenticated by the Trustee, except for those cancelled by
it, those delivered to it for cancellation and those described in this Section
2.8 as not outstanding. Notwithstanding anything to the contrary contained in
this Indenture (except as set forth in Section 2.9 hereof), neither the Company
nor any Affiliate of the Company shall be counted in respect of any Acts of
Holders or for purposes of determining whether Holders of the requisite portion
of Notes have authorized or agreed or consented to a request, direction, notice,
consent or waiver, or denied authorization with respect to any matter requiring
the agreement, consent, authorization or waiver of the Holders and all Notes
held by the Company or any Affiliate of the Company shall be deemed not to be
issued and not to be outstanding for purposes thereof. Except as specifically
provided herein, such Notes do not cease to be outstanding for other purposes
under this Indenture solely because an Affiliate of the Company owns the Notes
of record or beneficially.
If any Note is replaced pursuant to Section 2.7, such Note shall cease
to be outstanding as of the date it is replaced, unless the Trustee receives
proof satisfactory to it that the replaced Note is held by a bona fide
purchaser.
If the principal of, interest on, or Defaulted Interest, if any, or
premium, if any, on any Notes is considered paid under Section 4.1 hereof, such
amount shall cease to be outstanding, and any interest on such amount ceases to
accrue as of the date of such payment.
If any Note is redeemed, repurchased or converted, the principal
amount of such Note so redeemed, repurchased or converted shall cease to be
outstanding and interest thereon shall cease to accrue as of the date of such
payment.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a Redemption Date or Stated Maturity Date, money sufficient,
in immediately available funds, to pay all principal of, interest on and
premium, if any, payable on that date with respect to the Notes (or the portion
thereof to be redeemed or maturing, as the case may be), then on and after that
date such Notes (or portions thereof) shall no longer be deemed to be
outstanding and shall cease to accrue interest.
Upon a "Legal Defeasance" pursuant to Article 8, the Notes shall be
deemed to be outstanding to the extent provided in the applicable Section of
Article 8 hereof.
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SECTION 2.9. Treasury Notes. In determining whether the Holders of the
required principal amount of the Notes have concurred in any Act of Holders,
request, demand, authorization, direction, notice, waiver, consent or other
action, record and beneficial interests in the Notes owned by the Company or any
Affiliate of the Company and the voting rights related to such beneficial
interests in the Notes shall be disregarded, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only interests in the Notes that are listed as so
owned in the CP Certificate required to be delivered pursuant hereto shall be so
disregarded.
SECTION 2.10. Temporary Notes. Until definitive Notes are ready for
delivery, the Company may prepare, and the Trustee shall authenticate, upon
written order of the Company signed by two officers of a Controlling Partner,
temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Company reasonably considers
appropriate for temporary Notes. Without unreasonable delay, the Company shall
prepare, and the Trustee shall authenticate, definitive Notes in exchange for
temporary Notes.
Until such exchange, such temporary Notes shall be entitled to the
same rights, benefits and privileges as definitive Notes.
SECTION 2.11. Cancellation. The Company at any time may deliver Notes
to the Trustee for cancellation. The Conversion Agent, Registrar and the Paying
Agent shall forward to the Trustee any Notes surrendered to them for conversion,
registration of transfer, exchange or payment. The Trustee and no one else shall
cancel all Notes surrendered for registration of transfer, exchange, payment,
conversion or cancellation and the Trustee shall dispose of such Notes as
directed in writing by the Company. The Company may not issue new Notes to
replace Notes it has paid for or delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest. If the Company defaults in a payment
of interest on the Notes, it shall pay the defaulted interest in U.S. dollars in
immediately available funds, plus, to the extent permitted by law, any interest
payable on the defaulted interest, to the Persons who are Noteholders on a
subsequent special record date, in each case at the rate provided in the Notes
("Defaulted Interest"). Such special record date shall be the tenth day next
preceding the date fixed by the Company for the payment of Defaulted Interest,
whether or not such special record date is a Business Day. At least 15 days
before the special record date, the Company shall mail or cause to be mailed to
each Noteholder and the Trustee a notice that states the special record date,
the payment date and the amount of Defaulted Interest to be paid.
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ARTICLE 3.
REDEMPTION
SECTION 3.1. Optional Right to Redeem; Notices to Trustee.
(a) At any time on or after the date hereof to and including the
second anniversary of the Effective Date, the Company, at its option, may redeem
the Notes in whole or in part for Cash in accordance with this Section 3.1, at a
redemption price equal to 100% of the principal amount thereof outstanding at
the Redemption Date, plus accrued and unpaid interest to the Redemption Date
(the "Redemption Price"). Immediately following the close of business on the
second anniversary of the Effective Date, this right to redeem Notes shall
terminate and the Company shall have no other optional redemption rights.
(b) If the Company elects to redeem the Notes in whole or in part
pursuant to this Article 3, it shall notify the Trustee in writing of its
election to redeem the Notes, at least 45 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee) and shall deliver
to the Trustee a CP Certificate setting forth the Redemption Date, the principal
amount of Notes to be redeemed and the Redemption Price.
SECTION 3.2. Selection of the Notes or Portions Thereof to be
Redeemed. If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the portions of the Note to be redeemed by such method as
the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal of Notes of a denomination
larger than $1,000. The Trustee shall make the selection at least 35 but not
more than 65 days before the Redemption Date from the Notes not previously
called for redemption. The Notes and portions thereof so selected for redemption
by the Trustee shall be in principal amounts of $1,000 or an integral multiple
of $1,000. Provisions of this Indenture that apply to the Notes called for
redemption also apply to portions of the Notes called for redemption. The
Trustee shall notify the Company promptly in writing which Notes or portions of
the Notes are to be redeemed and, in the case of Notes selected for partial
redemption, the principal amount thereof to be redeemed.
SECTION 3.3. Notice of Redemption. At least 30 days but not more than
60 days before a Redemption Date, the Company shall mail or cause to be mailed a
notice of redemption by first-class mail, postage prepaid, to Holders of the
Notes at the Holders' last addresses, as they shall appear on the Register. A
copy of such notice shall be mailed to the Trustee on the same day the notice is
mailed to Holders unless, pursuant to the Company's request made under the
provisions of this Section 3.3 below, the Trustee mails such notice to the
Holders on behalf of the Company.
The notice shall identify the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
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(4) if a Note is being redeemed in part, the portion of the principal
amount of the Note to be redeemed and that on and after the Redemption Date,
upon surrender of the Note, a new Note or Notes in principal amount equal to the
unredeemed portion will be issued;
(5) that Notes called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price;
(6) that unless the Company defaults in making the redemption payment,
interest will cease to accrue on the Notes or portions thereof called for
redemption on and after the Redemption Date;
(7) the Conversion Price then in effect, that the Notes may be
converted pursuant to the provisions of Article 11 hereof at any time prior to
the close of business on the Redemption Date and that the conversion right will
expire in respect of the Notes or portions thereof called for redemption upon
the close of business on the Redemption Date unless the Company defaults in
making the redemption payment.
At the Company's written request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense within 15 days of
such request; provided, however, that (i) in all cases, the text of such notice
of redemption shall be prepared or approved by the Company and the Trustee shall
have no responsibility whatsoever with regard to such notice being accurate or
correct (except for the selection of the portions of the Notes for redemption
pursuant to Section 3.2) and (ii) notice containing such request shall be
accompanied by a CP Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice.
SECTION 3.4. Effect of Notice of Redemption. Once notice of redemption
is given, Notes or portions thereof called for redemption become due and payable
on the Redemption Date and at the Redemption Price. Upon the later of the
Redemption Date and the date the Notes or portions thereof are surrendered to
the Paying Agent, the Notes or portions thereof called for redemption shall be
paid at the Redemption Price, if money in immediately available funds sufficient
for that purpose has been deposited as provided in Section 3.5 hereof. If a
Redemption Date is on an Interest Payment Date and after the related Record Date
for such Interest Payment Date, any interest accrued and unpaid to the
Redemption Date shall be paid on such Interest Payment Date to the Person in
whose name the Notes are registered at the close of business on such Record Date
and the only remaining right of the Holder of the Notes or portions thereof
called for redemption shall be to receive the Redemption Price, excluding all
accrued interest thereon, upon surrender of such Notes to the Paying Agent.
Notice of redemption shall be deemed to be given when mailed by first
class mail to each Holder at its latest registered address, whether or not any
such Holder receives the notice.
SECTION 3.5. Deposit of Redemption Price. On or prior to the
Redemption Date, the Company shall irrevocably deposit with the Paying Agent in
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immediately available funds money sufficient to pay the Redemption Price of the
Notes or portions thereof to be redeemed on that date other than portions of the
Notes called for redemption which prior thereto have been delivered by the
Company to the Trustee for cancellation or delivered to the Trustee by the
Holder thereof for conversion pursuant to Article 11 hereof. If any Note called
for redemption is converted pursuant hereto, any money deposited with the
Trustee or any Paying Agent for the Redemption Price of such Note shall be paid
to the Company upon the Company's written request. The Paying Agent shall return
to the Company any money deposited with the Paying Agent by the Company in
excess of the amounts necessary to pay the Redemption Price of, and accrued
interest on, all Notes or portions thereof to be redeemed.
If the Company complies with the preceding paragraph, interest on the
Notes or portions thereof to be redeemed, whether or not the Notes are presented
for payment, will cease to accrue on the applicable Redemption Date. If any Note
called for redemption is not paid upon surrender thereof for redemption, the
principal (and premium, if any) shall, until paid, bear interest from the
Redemption Date and such Note shall remain convertible until the principal of
such Note and accrued interest shall have been paid or duly provided for.
SECTION 3.6. Notes Redeemed in Part. Upon surrender of the Notes that
are redeemed in part, the Company shall issue, and the Trustee shall
authenticate and make available for delivery to the Holder, new Notes in an
authorized denomination equal in principal amount to the unredeemed portion of
the Notes surrendered.
SECTION 3.7. Special Procedures for Change in Control Offer, Excess
Proceeds Offer and Capital Infusion Offer. The following provisions shall apply
notwithstanding any other provision of this Article 3:
Within 30 days following any Change in Control or the occurrence of an
event upon the happening of which the Company is hereunder required to make an
Excess Proceeds Offer or a Capital Infusion Offer (any such event or Change in
Control hereinafter referred to as a "Special Offer Triggering Event"), the
Company shall mail, by first class mail, to each Holder at its last registered
address, with a copy to the Trustee, a notice, which shall govern the relevant
Change in Control Offer, Excess Proceeds Offer or Capital Infusion Offer (each
one of which is hereinafter referred to as a "Special Offer"), containing all
instructions and materials necessary to enable the Holders to tender the Notes
or portions thereof pursuant to the Special Offer, and shall state:
(i) that the Special Offer is being made pursuant to Section 4.9,
4.10 or 4.17, as applicable, and, in the case of a Change in
Control Offer, that all issued and outstanding Notes duly and
validly tendered and not subsequently withdrawn (in compliance
with the provisions of clause (vi) below) will be accepted for
payment and paid for by the Company or, in the case of an Excess
Proceeds Offer or a Capital Infusion Offer, the amount of the
Excess Proceeds or Capital Infusion, as applicable, to be applied
to the purchase of Notes (the "Special Offer Amount") pursuant to
such Excess Proceeds Offer or such Capital Infusion Offer and the
aggregate principal amount of Notes then outstanding;
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(ii) the Special Offer Purchase Price in such Special Offer and the
purchase date (the "Special Offer Payment Date"), which date
shall not be less than 21 Business Days nor more than 31 Business
Days following the date such notice is mailed, provided that the
Special Offer Payment Date shall in no event be later than 60
days (or up to an additional 30 days to the extent required by
applicable law) after the Special Offer Triggering Event;
(iii) that the Notes or portions thereof not tendered (or which are
tendered but subsequently withdrawn by the Holder prior to
acceptance for payment by the Company or, in the case of an
Excess Proceeds Offer or a Capital Infusion Offer, not accepted
for payment by reason of the proration provisions of such Offer)
will continue to accrue interest and shall continue to be
governed by the terms of this Indenture in all respects;
(iv) that, unless the Company defaults in the payment thereon, the
Notes or portions thereof that are tendered and not timely
withdrawn by Holders and accepted for payment pursuant to the
Special Offer will cease to accrue interest from and after the
Special Offer Payment Date;
(v) that Holders electing to have the Notes (or portions thereof)
purchased pursuant to a Special Offer will be required to
surrender the Notes, accompanied by such customary documents of
surrender and transfer as the Company or the Trustee reasonably
may request, duly completed, to the Trustee at the address of the
Trustee specified in the notice of the Special Offer prior to the
close of business on the Business Day immediately preceding the
Special Offer Payment Date;
(vi) a Holder will be entitled to withdraw or modify its election if
the Trustee receives at the address or facsimile number, as
applicable, of the Trustee specified in the notice of the Special
Offer, not later than the close of business on the Business Day
immediately preceding the Special Offer Payment Date, a facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of the Notes (or portions thereof) such Holder
delivered for purchase, and a statement that such Holder is
withdrawing or modifying its election to have all or part of such
Notes (or portions thereof) purchased;
(vii) that a Holder whose Notes are purchased only in part will be
issued new Notes in a principal amount equal to the unpurchased
portion of the Notes surrendered, provided that the Notes or
portions thereof purchased and each of such new Notes issued
shall be in a principal amount of $1,000 or an integral multiple
thereof;
(viii) in the case of a Change in Control Offer, the circumstances and
material facts regarding the Change in Control, including but not
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limited to information with respect to the historical
consolidated and combined financial information of the Company
and its Subsidiaries and pro forma consolidated and combined
financial information (other than projections) of the Company and
its Subsidiaries after giving pro forma effect to the Change in
Control, information regarding any Person or Persons acquiring
control, to the extent reasonably available, and the business
plans of such Person or Persons with respect to the Company, to
the extent reasonably available;
(ix) in the case of an Excess Proceeds Offer or a Capital Infusion
Offer, that if the Notes (or portions thereof) in an aggregate
principal amount exceeding the Special Offer Amount, as
applicable, are duly surrendered (and not withdrawn in compliance
with the provisions of clause (vi) above), the Company shall
purchase Notes on a pro rata basis (with such adjustments as may
be deemed appropriate by the Company so that Notes shall be
purchased only in principal amounts of $1,000 or integral
multiples thereof);
(x) the Conversion Price then in effect, the number of Class A
Interests into which the Notes may then be converted, that the
Notes may be converted pursuant to the provisions of Article 11
hereof at any time and that such conversion right will expire
with respect to the Notes (or the portion thereof) duly
surrendered (and not withdrawn in compliance with the provisions
of clause (vi) above) and accepted for payment by the Company
unless the Company defaults in the payment of the Special Offer
Purchase Price; and
(xi) in the case of a Special Offer that constitutes a Full Payment
Triggering Offer (whether pursuant to a Change in Control Offer
or otherwise), that from and after the Full Payment Triggering
Date relating thereto, the Company shall no longer be required to
comply with any of the covenants contained in Section 4.6
(Limitation on Restricted Payments), Section 4.7 (Limitation on
Additional Indebtedness), Section 4.10 (Asset Sales), Section
4.17 (Capital Infusion Offer) or Section 4.21 (Limitations on
Subsidiary Owners).
On or before the Special Offer Payment Date, the Company shall (i)
deposit with the Trustee or the Paying Agent immediately available funds
sufficient to pay the Special Offer Purchase Price of the Notes or portions
thereof accepted for payment, (ii) deliver or cause to be delivered to the
Trustee a CP Certificate specifying the Notes or portions thereof accepted for
payment, respectively, and (iii) accept for payment the Notes or portions
thereof tendered and not theretofore withdrawn, pursuant to the Special Offer,
except that, in the case of an Excess Proceeds Offer or Capital Infusion Offer,
the principal amount of the Notes accepted for payment need not exceed the
Special Offer Amount. The Trustee shall promptly mail to each Holder of the
Notes so tendered payment in an amount equal to the Special Offer Purchase Price
for such Notes or portions thereof accepted for payment, respectively, and, and
with respect to the Notes accepted for payment in part the
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Company shall issue and the Trustee shall promptly authenticate and mail to such
Holder one or more certificates evidencing new Notes equal in principal amount
to any unpurchased portion of the Notes surrendered. The Notes or portions
thereof purchased pursuant to a Special Offer will be cancelled by the Trustee.
The Company will publicly announce (or cause to be mailed to all Holders at
their last addresses as they shall appear in the Register a written notice
setting forth) the results of any Special Offer on or as soon as practicable
after the Special Offer Payment Date.
ARTICLE 4.
COVENANTS
SECTION 4.1. Payment of Principal, Premium and Interest.
The Company shall pay the principal of, interest on, and premium, if
any, on the Notes on (or prior to) the dates and in the manner provided in the
Notes or pursuant to this Indenture. An installment of principal, premium, if
any, or interest shall be considered paid on the applicable date due, if on such
date the Trustee or the Paying Agent holds, in accordance with this Indenture,
money, in immediately available funds, sufficient to pay all of such installment
then due no later than 12:00 noon on such date. The Company shall pay interest
on overdue principal and premium, if any, and, to the extent permitted by
applicable law, interest on overdue installments of interest (in each case,
including interest accruing on or after the commencement of a bankruptcy or
reorganization proceeding relating to the Company or the filing of a petition
relating to the same, whether or not a claim for such interest is allowed or
allowable in such proceeding), to the extent lawful, at the rate per annum borne
by the Notes plus 2%, which interest on overdue interest and/or principal shall
accrue from the date such amounts became overdue.
SECTION 4.2. Provision of Reports and Other Information.
(a) So long as any Notes remain outstanding, the Company shall cause
copies of all quarterly and annual reports and of the information, documents and
other reports which the Company is required to file with the Commission pursuant
to Section 13(a) or 15(d) of the Exchange Act ("Commission Reports") to be
delivered to the Trustee and mailed to the Holders at their addresses appearing
in the Register, in each case, within 5 days of filing with the Commission. If
for any reason the Company is not subject to the requirements of Section 13(a)
or 15(d) of the Exchange Act or shall cease to be required by the Commission to
file Commission Reports, the Company shall prepare and file with the Trustee and
mail to the Holders at their addresses appearing in the Register:
(i) not later than 45 days after the close of each of the
first three fiscal quarters of each fiscal year of the Company, a
report containing substantially the same information as is required to
be included in a report on Form 10-Q promulgated by the Commission
pursuant to the Exchange Act; and
(ii) not later than 120 days after the close of each fiscal
year of the Company, a report containing substantially the same
information as is required to be included in
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a report on Form 10-K promulgated by the Commission pursuant to the
Exchange Act;
provided, however, that in respect of the foregoing reports (a) the form of
financial statements included therein need not comply with the provisions of
Regulation S-X (but shall nevertheless be prepared in accordance with GAAP), (b)
the Company need not include any pro forma financial statements for periods
prior to the Effective Date, (c) no reporting of the matters contemplated in
Item 402 of Regulation S-K shall be required, except that there shall be
included a reasonably detailed description of the compensation from the Company
and its Subsidiaries of the five highest paid executive officers of the Company
and of all executive officers of the Company as a group, (d) substantially the
same information that would otherwise have been required to be included in a
Form 8-K if the Company were required to file Commission Reports shall be
included in the next report referred to in clause (i) or (ii) above, (e) such
reports shall include exhibit lists listing the same exhibits as are required to
be listed in a report on Form 8-K, Form 10-Q or Form 10-K, as the case may be,
and (f) any Noteholder shall be entitled to obtain from the Company a copy of
any exhibit so listed or required to be listed. For purposes of preparing and
providing Commission Reports that comply with rules and regulations issued by
the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act, such
Commission Reports shall be prepared as if the Company were a "registrant"
within the meaning of Rule 12b-2 of the Exchange Act. The Company shall make all
such information available to investors who request it in writing. The Company
shall also comply with the provisions of TIA ss. 314(a).
(b) So long as any Notes remain outstanding, the Company shall cause
copies of all reports, information and notices (other than form K-1s and (to the
extent actually provided to Holders pursuant to Section 4.2) financial
statements provided to partners thereof) furnished to partners of the Company
generally to be delivered to the Trustee and mailed to the Holders at their
addresses appearing in the Register, in each case promptly after they are so
furnished.
(c) So long as any Notes remain outstanding, the Company shall, within
15 days after the making or adoption thereof, cause a copy of each amendment,
modification or waiver of or to the Partnership Agreement (as it may be amended
from time to time) to be delivered to the Trustee and mailed to the Holders at
their addresses appearing in the Register. At the request of any Holder or the
Trustee, the Company shall deliver to the Trustee and to such Holder at its
address appearing in the Register a true and complete copy of the Partnership
Agreement, as amended through the date of delivery thereof.
(d) So long as any Notes remain outstanding, the Company shall cause
notice of any proposed amendment, modification or waiver of or to the
Partnership Agreement referred to in the first or the second proviso to the
first sentence of Section 11.01(b) of the Partnership Agreement (as in effect on
the date hereof) to be mailed to the Holders at their addresses appearing in the
Register, in each case at least 15 days prior to the earlier of (i) any vote on
such amendment, modification or waiver or (ii) any record date for such vote.
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(e) So long as any Notes remain outstanding, the Company shall cause
to be delivered to the Trustee and mailed to Holders at their addresses
appearing in the Register, together with reports delivered pursuant to Section
4.2(a), a report identifying each Subsidiary of the Company that became an
Exempt Subsidiary during the relevant reporting period and each Subsidiary that
ceased to be an Exempt Subsidiary during such period. Such notice shall identify
the relevant Subsidiary and the date of such change in status.
(f) If the Company instructs the Trustee to distribute any of the
documents described in clause (a), (b), (c), (d) or (e) above to the
Noteholders, the Company shall provide the Trustee with a sufficient number of
copies of all such documents that the Company may be required to deliver to the
Noteholders under this Section 4.2.
SECTION 4.3. Compliance Certificates.
(a) The Company shall deliver to the Trustee and mail to the Holders
at their addresses appearing in the Register within 60 days after the end of
each fiscal quarter and 120 days after the end of each of the Company's fiscal
years (which as of the date hereof is the calendar year) a CP Certificate
stating whether or not the Company or any Controlling Partner knows of any
Default or Event of Default which occurred during such preceding fiscal period
or occurred in any other fiscal period and is continuing. Such certificate shall
contain a certification from each Controlling Partner as to its knowledge of the
Company's compliance with all conditions and covenants under this Indenture
during such preceding fiscal year and shall otherwise comply with TIA Section
314(a)(4). If a Controlling Partner knows of a Default or Event of Default, the
certificate shall describe any such Default or Event of Default, and its status.
(b) So long as it is not contrary to the then current recommendation
of the American Institute of Certified Public Accountants and so long as the
Company's accountants provide similar statements to other companies, the Company
shall deliver to the Trustee and mail to the Holders at their addresses
appearing in the Register within 120 days after the end of each fiscal year a
written statement by the Company's independent certified pubic accountants
stating (A) that their audit examination has included a review of the terms of
this Indenture and the Notes as they relate to accounting matters, and (B)
whether, in connection with their audit examination, any Default has come to
their attention and, if such a Default has come to their attention, specifying
the nature and period of the existence thereof; provided, however, that the
independent certified public accountants delivering such statement shall not be
liable in respect of such statement by reason of any failure to obtain knowledge
of any such Default or Event of Default that would not be disclosed in the
course of an audit examination conducted in accordance with GAAP. In the absence
of actual notice to the contrary, the Trustee shall be entitled to rely upon the
aforementioned statement of the Company's independent public accountants and
shall not be liable to anyone with respect thereto.
(c) The Company shall deliver to the Trustee and mail to the Holders
at their addresses appearing on the Register as soon as possible and in any
event within 10 Business Days after the Company or a Controlling Partner becomes
aware of the occurrence of a Default or Event of Default, which is continuing, a
CP Certificate setting forth the
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details of such Default or Event of Default, and the action which the Company
proposes to take with respect thereto.
(d) The Company shall deliver to the Trustee any information
reasonably requested by the Trustee in connection with the compliance by the
Trustee or the Company with the TIA.
SECTION 4.4. Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 4.5. Maintenance of Office or Agency. The Company will
maintain or cause to be maintained, within the City of New York, Borough of
Manhattan, an office or agency (which may be an office of the Trustee, Registrar
or Paying Agent) where the Notes may be presented or surrendered for payment,
where the Notes may be surrendered for registration of transfer, exchange,
conversion or redemption and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The corporate trust
office of the Trustee at 101 Barclay Street, New York, New York 10286,
Attention: Corporate Trust Department - Administration, shall initially be such
office or agency for all of the aforesaid purposes. The Company shall give
prompt written notice to the Trustee of any change of location of such office or
agency. If at any time the Company shall fail to maintain or cause to be
maintained any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in Section
10.2 hereof.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that any such designation or rescission shall not in any manner relieve
the Company of its obligation to maintain an office or agency within the City of
New York, Borough of Manhattan. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in location
of any such other office or agency.
SECTION 4.6. Limitation on Restricted Payments. Until the Full Payment
Triggering Date, the Company shall not, and shall not permit any Subsidiary to,
directly or indirectly, (i) make any distribution on account of or in respect of
any Equity Interests issued by the Company (other than Tax Advances, Withholding
Advances and distributions by the Company of partnership interests of the
Company that are not Redeemable Interests) (ii) purchase, repurchase, redeem or
otherwise acquire or retire for value any Equity Interest issued by the Company
(other than the Notes pursuant hereto); or (iii) purchase, repurchase, redeem,
prepay, defease, or otherwise acquire or retire for value, or make any payment
of principal, interest or other amounts on or with respect to, any Indebtedness
of the Company that is subordinated in right of payment to the Notes; provided,
however, that none of the foregoing shall prohibit the conversion of Class B
Interests
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outstanding on the date hereof into Class A Interests pursuant to the terms of
the Partnership Agreement (as it exists on the date hereof).
SECTION 4.7. Limitation on Additional Indebtedness. Until the Full
Payment Triggering Date, the Company shall not, directly or indirectly, create,
incur, issue, assume, guarantee or otherwise become directly or indirectly
liable for the payment of, contingently or otherwise (collectively, "Incur"),
any Indebtedness.
The foregoing limitation of this Section 4.7 shall not apply to:
(i) Indebtedness of the Company under this Indenture or represented by
the Notes; (ii) Indebtedness of the Company specifically contemplated
by the Plan to be outstanding on the Effective Date as listed on
Schedule I hereto; (iii) Indebtedness of the Company that constitutes a
Capital Infusion in respect of which the Company has not defaulted in
its obligations under Section 3.7 or 4.17 hereof; (iv) Indebtedness of
the Company Incurred in exchange for, or the proceeds of which are used
to extend, refinance, renew, replace, substitute or refund
(collectively, "Refinance"), Indebtedness permitted by clauses (i),
(ii) or (iii) of this Section 4.7 (the "Refinancing Indebtedness");
provided, however, that (A) the principal amount of such Refinancing
Indebtedness shall not exceed the then outstanding principal amount of
the Indebtedness of the Company so extended, refinanced, renewed,
replaced, substituted or refunded (including the reasonable
out-of-pocket costs of issuance, any interest and accrued expenses
owing in respect of such Refinanced Indebtedness, in each case accrued
from the first day of the month in which such refinancing occurs, and
any prepayment premium owing in respect of such Refinanced
Indebtedness), (B) such Refinancing Indebtedness ranks, relative to the
Notes, no more senior than the Indebtedness being Refinanced thereby,
(C) such Refinancing Indebtedness bears interest at or below a market
rate, (D) such Refinancing Indebtedness shall not be secured by any
Lien on any property of the Company except to the extent that there is
a Lien on such property as security for the Indebtedness being
Refinanced, and (E) such Refinancing Indebtedness (1) shall have an
Average Life not less than and a stated maturity (including any
extensions available at the option of the Company) not earlier than,
the Average Life and stated maturity (including any extensions
available at the option of the Company), respectively, of the
Indebtedness being Refinanced or (2) shall not have a scheduled
maturity (including any extensions available at the option of the
Company), principal repayment, sinking fund payment or mandatory
redemption on or prior to the maturity of the Notes; (v) Subordinated
Debt referred to in clause (a), (c) or (e) of the first proviso to the
definition of Capital Infusion; (vi) Indebtedness Incurred by the
Company in exchange for, or the proceeds of which are used to
Refinance, Indebtedness permitted by clause (v) of this Section 4.7
(the "Subordinated Debt Refinancing Indebtedness"); provided, however,
that (A) the principal amount of such Subordinated Debt Refinancing
Indebtedness shall not exceed the sum of (x) the then outstanding
principal amount, and prepayment premiums owing in respect, of the
Subordinated Debt so Refinanced, (y) interest and accrued expenses
owing in respect of the Subordinated Debt so Refinanced, in each case
accrued from the first day of the month in which such refinancing
occurs and (z) the amount of all reasonable and customary transaction
expenses actually incurred
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by the Company in connection with the Incurrence of such Subordinated
Debt Refinancing Indebtedness, and (B) such Subordinated Debt
Refinancing Indebtedness shall be Subordinated Debt; (vii) Indebtedness
for borrowed money of the Company owing to Subsidiaries of the Company
that are not Acquisition Subsidiaries, as referred to in clause (g) of
the first proviso to the definition of Capital Infusion; (viii)
Permitted Indebtedness; and (ix) Indebtedness of the Company which
consists solely of nonrecourse pledges of shares of a class of Capital
Stock (which class of Capital Stock is entitled to elect one director)
of a GP Subsidiary Owner with respect to an Office Building Property
which secures Indebtedness secured by such Office Building Property.
SECTION 4.8. Limitation on Transactions with Affiliates. Neither the
Company nor any of its Subsidiaries shall enter into or suffer to exist any
transaction or series of related transactions with any Related Person of the
Company (including, without limitation, the making of any Investment or
guarantee in, to, or for the benefit of, any such Related Person, the sale,
lease, transfer or other disposition of any properties or assets to, or for the
benefit of, any such Related Person or the purchase or lease of any property or
assets from, any such Related Person), unless (i) such transaction or series of
transactions is on terms that are no less favorable to the Company or the
relevant Subsidiary, as the case may be, than those that could have been
obtained in a comparable transaction on an arm's length basis from a Person that
is not a Related Person of the Company and (ii) with respect to any transactions
or series of related transactions that is of a value greater than $10,000,000,
the Company delivers to the Trustee an opinion from a nationally recognized
investment banking firm that such transaction or series of related transactions
is fair to the Company or the relevant Subsidiary, as the case may be, from a
financial point of view; provided, however, that, solely for purposes of
compliance with this covenant, banking and investment banking transactions that
are concluded as part of a public offering, securitization, syndication or
similar distribution in which non-affiliated financial intermediaries
participate shall be presumed to be on arm's length terms, but only to the
extent that the relevant Related Persons participate on the same basis and
capacity as the financial intermediaries that are not Related Persons.
SECTION 4.9. Repurchase Upon Change in Control. Upon the occurrence of
a Change in Control, the Company shall offer in accordance with the procedures
set forth in Section 3.7 of this Indenture (the "Change in Control Offer") to
purchase all issued and outstanding Notes at the Special Offer Purchase Price
and shall purchase as and when required by Section 3.7 of this Indenture, all
Notes tendered in conformity with such section.
SECTION 4.10. Limitation on Use of Proceeds from Asset Sales. Until
the Full Payment Triggering Date, neither the Company nor any Subsidiary shall,
directly or indirectly, consummate any Asset Sale with or to any Person other
than the Company or a Wholly Owned Subsidiary, unless (i) the Company or the
Subsidiary, as the case may be, receives consideration at the time of any such
Asset Sale at least equal to the fair market value of the asset sold or
otherwise disposed of, and (ii) at least 80% of the net proceeds from such Asset
Sale is received in Cash or Cash Equivalents (provided that the amount of any
liabilities (as shown on the Company's most recent consolidated balance sheet)
of the
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Company or any Subsidiary of the Company that are assumed by the transferee in
such Asset Sale shall be excluded from both the numerator and denominator when
calculating the percent of net proceeds received in Cash or Cash Equivalents for
purposes of this provision). Within 180 days after the receipt by the Company or
any Subsidiary of the Company of Net Cash Proceeds in respect of any Asset Sale,
the Company shall (or shall cause its relevant Subsidiary to) use all such Net
Cash Proceeds (a) to repay Indebtedness of the type described in subsections
(i), (ii), (iii) or (iv) of Section 4.7 of this Indenture, (b) to repay
Indebtedness of any Subsidiary of the Company to the extent of the fair market
value of any asset of the Company or any Subsidiary of the Company that is
pledged to secure such Indebtedness, (c) to make capital improvements to any of
the Core Properties then owned by the Company or any Subsidiary of the Company
or to acquire a New Property or New Property Equity Interests (except that the
amount of Net Cash Proceeds used to make capital improvements and/or to acquire
a New Property or New Property Equity Interests may not exceed 50% of the
aggregate of such Net Cash Proceeds), (d) to make an offer in accordance with
the procedures set forth in Section 3.7 of this Indenture (an "Excess Proceeds
Offer") to purchase Notes at the Special Offer Purchase Price, or (e) for any
combination of the above; provided that, so long as the Excess Proceeds of Asset
Sales at any time do not exceed $2,500,000, the Company need not make an Excess
Proceeds Offer; and provided, further, that if the aggregate amount of all
Excess Proceeds at any time exceeds $2,500,000, the Company shall use such
aggregate Excess Proceeds to make an Excess Proceeds Offer as set forth in this
Section 4.10. The Company shall be deemed to have used Net Cash Proceeds for the
purposes set forth in clause (c) of the preceding sentence when it has made a
binding commitment (which may be subject to customary contingencies or
conditions) to do so, provided that such Net Cash Proceeds are so used within 18
months following receipt of such Net Cash Proceeds or (if the Company determines
that application thereof cannot be effected pursuant to such binding commitment
within such 18 month period) are used within 15 days after such determination
for the purposes described in clause (a) or (b) of the second sentence of this
Section 4.10. If and to the extent that the principal amount of the Notes (plus
accrued interest thereon) tendered pursuant to any Excess Proceeds Offer is less
than the Excess Proceeds available to fund such offer, the Company may use such
remainder, or a portion thereof, for general purposes, without restriction by
this Section 4.10.
SECTION 4.11. Payment of Taxes and Other Claims. The Company shall and
shall cause each of its Subsidiaries to pay or discharge or cause to be paid or
discharged, before any penalty accrues thereon, (i) all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
Subsidiary upon the income, profits or property of the Company or any Subsidiary
of the Company and (ii) all material lawful claims for labor, materials and
supplies which, if unpaid, would by law become a Lien upon the property of the
Company or any Subsidiary of the Company; provided that neither the Company nor
any Subsidiary of the Company shall be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim the amount,
applicability or validity of which is being contested in good faith by
appropriate proceedings and for which adequate provision has been made or where
the failure to effect such payment or discharge is not adverse in any material
respect to the Holders.
SECTION 4.12. Corporate or Partnership or Other Existence. Subject to
Article 5 hereof, the Company shall and shall cause each of its Subsidiaries to
do or cause to
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be done all things necessary to preserve and keep in full force and effect its
partnership existence and the corporate, partnership or other existence of each
Subsidiary of the Company in accordance with the respective organizational
documents of such Subsidiary and the rights (charter and statutory), licenses
and franchises of the Company and its Subsidiaries and the Controlling Partners;
provided, however, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence of
any Subsidiary, if the Company shall determine that the preservation thereof is
no longer desirable in the conduct of the business of the Company and its
Subsidiaries taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders.
SECTION 4.13. Maintenance of Properties and Insurance. The Company
shall and shall cause each of its Subsidiaries to cause all material properties
owned by, or leased to, the Company or any Subsidiary of the Company and used in
the conduct of its business to be maintained and kept in normal condition,
repair and working order and supplied with all necessary equipment and shall
cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly conducted
at all times; provided, however, that nothing in this Section shall prevent the
Company or any Subsidiary of the Company from discontinuing the maintenance of
any such properties, if such discontinuance is desirable in the conduct of its
business and is not adverse in any material respect to the Holders.
The Company shall and shall cause each of its Subsidiaries to provide
or cause to be provided insurance (including self-insurance) against loss or
damage of the kinds customarily insured against by entities similarly situated
and owning like properties, including, but not limited to, liability insurance,
in such amounts, with such deductibles and by such methods as shall be customary
for entities similarly situated in the industry.
SECTION 4.14. Stay, Extension and Usury Laws. The Company covenants
(to the fullest extent it may lawfully do so) that it will not at any time
insist upon, plead or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law wherever enacted, now or at any
time hereafter enforced, which may affect the covenants or the performance of
this Indenture; and the Company (to the extent it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law has been enacted.
SECTION 4.15. Payment for Consent. Neither the Company, any
Controlling Partner nor any of their respective Subsidiaries or Affiliates
shall, directly or indirectly, pay or cause to be paid any consideration,
whether by way of interest, fee or otherwise, to any Holder of any Notes for or
as an inducement to obtaining any consent, waiver or amendment of any of the
terms or provisions of this Indenture or the Notes, unless such consideration is
offered in writing to all Holders of Notes on the same terms and conditions and
agreed to be paid, and paid, to all Holders of the Notes which so consent, waive
or agree to amend in the time frame set forth in the solicitation documents
relating to
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such consent, waiver or agreement (which time frame shall not consist of less
than 20 Business Days).
SECTION 4.16. Covenant to Comply with Securities Laws upon Purchase of
the Notes. In connection with any offer to purchase or purchase of the Notes (or
portions thereof) by the Company or any Subsidiary of the Company, the Company
shall (i) comply with Rule 13e-4 (other than, if not otherwise applicable, the
filing requirements of such rule) and Regulation 14E under the Exchange Act, and
(ii) otherwise comply with all Federal and state securities laws and regulations
so as to permit the rights and obligations hereunder (including Sections 3.7,
4.9, 4.10 and 4.17 hereof) to be exercised in the time and in the manner
specified in such Sections.
SECTION 4.17. Capital Infusion Offer. Upon each occurrence of a
Capital Infusion at any time prior to the Full Payment Triggering Date, the
Company shall offer in accordance with the procedures set forth in Section 3.7
of this Indenture (a "Capital Infusion Offer") to purchase at the Special Offer
Purchase Price sufficient Notes so that the aggregate of the principal amount of
all Notes (or portions thereof) offered to be purchased equals the amount of
such Capital Infusion.
SECTION 4.18. Officers' Certificates. Simultaneously with the
execution and delivery of this Indenture, (i) counsel to the Company shall
deliver to the Trustee on behalf of the Holders an Opinion of Counsel in the
form of Exhibit B hereto and (ii) the Company shall deliver to the Trustee on
behalf of the Holders CP Certificates that provide that all of the
representations and warranties set forth in Article 12 hereof are true, complete
and correct in all material respects.
SECTION 4.19. Tag Along Rights. (a) If at any time any limited or
general partner of the Company alone or together with any other such partners
(such partner or partners, "Tag-Along Sellers") proposes to enter into an
agreement (or substantially contemporaneous agreements, whether or not with the
same or affiliated parties) to sell or otherwise dispose of for value to any
Person or Group (as such term is defined in Sections 13(d)(3) and 14(d)(2) of
the Securities Exchange Act of 1934, as amended and in effect as of the date
hereof) other than a Wholly-Owned Affiliate (as defined in the Partnership
Agreement as in effect on the date hereof) of such partner or partners (a
"Tag-Along Purchaser") a Majority Interest (as defined in the Partnership
Agreement as in effect on the date hereof) in one or more related transactions
(such sale or other disposition for value being referred to as a "Majority
Tag-Along Sale"), then the Company shall cause the Tag- Along Sellers to afford
each Holder the opportunity to participate proportionately in such Majority
Tag-Along Sale in accordance with this Section 4.19. If at any time any
Tag-Along Sellers propose to enter into an agreement (or substantially
contemporaneous agreements, whether or not with the same or affiliated parties)
to sell or otherwise dispose of for value to any Tag-Along Purchaser a
Qualifying Interest (as defined in the Partnership Agreement as in effect on the
date hereof) in one or more related transactions (such sale or other disposition
for value being referred to as a "Qualifying Tag-Along Sale"; any Qualifying
Tag-Along Sale or any Majority Tag-Along Sale is sometimes referred to herein as
a "Tag- Along Sale"), then the Company shall cause the Tag-Along Sellers to
afford each 4% Holder the opportunity to participate proportionately in such
Qualifying Tag-Along Sale in
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accordance with this Section 4.19; provided, however, that if any Holder shall
have at any time exercised tag-along rights pursuant to this Section 4.19 or
pursuant to Section 9.08 of the Partnership Agreement, such exercise(s)
resulting in the sale or disposition of a portion, but not all, of such Holder's
Class A Interests and/or Notes, such Holder shall thereafter continue to be
deemed to be a 4% Holder notwithstanding that, as of the close of business on
the day immediately prior to the Tag-Along Notice Date relating to such
subsequent Qualifying Tag-Along Sale, such Holder no longer is a 4% Holder; and
provided, further, that no Holder shall be required to make any representation,
warranty or covenant in connection with a Tag-Along Sale, other than
representations and warranties as to its valid existence and its ownership,
authority and agreement to sell, free of liens, claims or encumbrances or any
right of set-off, the Notes proposed to be sold by it.
(b) The Company shall cause the relevant Tag-Along Sellers to provide
each Holder entitled to participate in such Tag-Along Sale pursuant to the
provisions of Section 4.19(a) hereof with written notice (the "Tag-Along Sale
Notice") not more than sixty (60) days nor less than twenty (20) days prior to
(the date of such Tag-Along Sale Notice being the "Tag-Along Notice Date") the
proposed date of the Tag-Along Sale (the "Tag- Along Sale Date"). Each Tag-Along
Sale Notice shall be accompanied by a copy of any written agreement relating to
the Tag-Along Sale (redacted to the extent necessary to comply with any
applicable confidentiality restriction but not so as to eliminate any
information otherwise required to be provided below) and shall set forth: (i)
the name and address of each proposed Tag-Along Purchaser of Class A Interests
in the Tag-Along Sale, (ii) the total percentage of Class A Interests (computed
on a basis that assumes all then outstanding Notes (exclusive of accrued
interest thereon) have been converted into Class A Interests) proposed to be
Transferred (as such term is defined in the Partnership Agreement as in effect
on the date hereof) by such Tag-Along Sellers (the "Original Sale Percentage"),
(iii) the proposed amount of consideration to be paid for such Class A
Interests, which consideration may be paid only in cash, and the terms and
conditions of payment offered by each proposed Tag- Along Purchaser, (iv) the
Tag-Along Sale Date and (v) the name and address of each Tag- Along Seller.
(c) Any Holder entitled to participate in the relevant Tag-Along Sale
pursuant to Section 4.19(a) hereof wishing to participate in the Tag-Along Sale
shall provide written notice (the "Tag-Along Notice") to the Company and the
relevant Tag-Along Sellers no less than five (5) Business Days prior to the
Tag-Along Sale Date. The Tag-Along Notice shall set forth the maximum principal
amount of Notes that such Holder elects to include in the Tag-Along Sale (the
percentage obtained by dividing (x) the number of Class A Interests issuable
upon conversion of such principal amount of Notes (exclusive of accrued interest
thereon) as of the close of business on the day immediately preceding the
Tag-Along Notice Date by (y) the number of Class A Interests outstanding as of
the close of business on the day immediately preceding the Tag-Along Notice Date
plus the number of Class A Interests issuable upon conversion of all outstanding
Notes (exclusive of accrued interest thereon) as of the close of business on the
day immediately preceding the Tag-Along Notice Date is herein referred to as
such Holder's "Tag-Along Sale Percentage"). The Tag-Along Notice given by any
Holder shall constitute such Holder's binding agreement to sell the principal
amount of Notes specified in the Tag-Along Notice on the terms and conditions
applicable to the Tag-Along Sale as if such Holder were selling a number of
Class A Interests equal to the
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number of Class A Interests issuable upon conversion of such principal amount of
Notes on the date of consummation of such Tag-Along Sale; provided, however,
that in the event that there is any material change in the terms and conditions
of such Tag-Along Sale applicable to the Holder (including, without limitation,
any decrease in the purchase price that occurs other than pursuant to an
adjustment mechanism set forth in the agreement relating to the Tag- Along Sale
or any failure to consummate the Tag-Along Sale within 90 days after the Tag-
Along Sale Date) after such Holder gives its Tag-Along Notice, then,
notwithstanding anything herein to the contrary, the Holder shall have the right
to withdraw from participation in the Tag-Along Sale with respect to all of its
Notes affected thereby. If the proposed Tag-Along Purchaser does not agree to
consummate the purchase for cash consideration of all of the Notes requested to
be included in the Tag-Along Sale by the Holders on the same terms and
conditions (except as otherwise provided in the last proviso to Section 4.19(a)
and as if such Holders were selling a number of Class A Interests equal to the
number of Class A Interests issuable upon conversion of such principal amount of
Notes on the date of consummation of such Tag-Along Sale) applicable to the
proposed purchase of the Original Sale Percentage of the Tag-Along Sellers, then
the Company shall cause such Tag-Along Sellers not to consummate the Tag-Along
Sale of any of their respective Class A Interests to such Tag-Along Purchaser,
unless the principal amount of Notes of each Holder that has delivered a
Tag-Along Notice to be purchased by the Tag-Along Purchaser in such sale shall
not be reduced below the Adjusted Tag-Along Amount in respect thereof and all
other terms and conditions of the Tag-Along Sale are the same for such Tag-Along
Sellers and the participating Holders (except as otherwise provided in the last
proviso to subsection 4.19(a) and as if the participating Holders were selling a
number of Class A Interests equal to the number of Class A Interests issuable
upon conversion of the principal amount of Notes being sold on the date of
consummation of such Tag-Along Sale).
If a Tag-Along Notice from any Holder is not received by the Company
no less than five (5) Business Days prior to the Tag-Along Sale Date, the
Company shall have no obligation to cause such Holder to be included in such
Tag-Along Sale, but only if such Tag-Along Sale is consummated on terms and
conditions which are no more favorable in any material respect to the Tag-Along
Sellers (and in any event, at no greater a purchase price, except as the
purchase price may be adjusted pursuant to the agreement relating to the
relevant Tag-Along Sale) than as stated in the Tag-Along Sale Notice and only if
such Tag- Along Sale is consummated on a date within sixty (60) days of the
Tag-Along Sale Date.
(d) On the date of closing of a Tag-Along Sale, each Holder shall
deliver such documentation, certificates or other instruments with respect to
the Notes to be sold by it in connection with such Tag-Along Sale as may be
reasonably required for the transfer of such Notes to the relevant Tag-Along
Purchaser, against delivery of the purchase price for such Notes, net of any
U.S. or state withholding taxes required to be withheld by the Tag- Along
Purchaser.
(e) The closing of any sale of Notes pursuant to this Section 4.19
shall take place at the offices of the Company (or at such other location as
shall be reasonably designated by the Company) concurrently with the closing of
any sale by the Tag-Along Sellers to the Tag-Along Purchaser.
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SECTION 4.20. Certain Amendments to Partnership Agreement. The Company
shall not permit to become effective any amendment to the Partnership Agreement
that would have the effect of (i) converting the interest of a holder of Class A
Interests issuable on conversion of the Notes from a limited partnership
interest into a general partnership interest, (ii) imposing any personal
liability on any holder of Class A Interests issuable on conversion of the Notes
or (iii) causing the rights and remedies available to any holder of a Class A
Interest issuable on conversion of the Notes to be different than those
available to the holder of any other Class A Interest.
SECTION 4.21. Limitations on Subsidiary Owners.
(a) Until the Full Payment Triggering Date, the Company shall not
permit any Subsidiary of the Company to at any time be a Subsidiary Owner with
respect to more than one Office Building Property, except that any GP Subsidiary
Owner may have an Equity Interest not in excess of 1.5% in the record or
beneficial owners of each of the Office Building Properties with respect to
which it is a GP Subsidiary Owner.
Until the Full Payment Triggering Date, except for Indebtedness of the
Company existing on the date hereof, Indebtedness permitted by clause (ix) of
Section 4.7, Refinancing Indebtedness permitted by clause (iv) of Section 4.7
and Indebtedness that constitutes a Capital Infusion in respect of which the
Company has not defaulted in its obligations under Sections 3.7 and 4.17 hereof,
the Company shall not permit to exist any Indebtedness of the Company of the
kind referred to in clause (v) or clause (vi) of the definition of
"Indebtedness"; provided, however, that the foregoing provisions of this
definition shall not be construed to prohibit the Company from providing to any
lender an environmental or similar indemnity in customary form.
(b) Until the Full Payment Triggering Date, the Company shall not
permit any Subsidiary Owner with respect to any Office Building Property to be
contingently liable for (whether pursuant to a guarantee or otherwise), or to
have any of its property be subject to a Lien which secures, (i) any
Indebtedness in excess of $1,000,000 of any Subsidiary Owner with respect to any
other Office Building Property, or (ii) any Indebtedness in excess of $1,000,000
secured by a Lien on any other Office Building Property or on any Equity
Interest in any Subsidiary Owner with respect to any other Office Building
Property. The provisions of this Section 4.21(b) shall not be deemed to be
violated by any of the following:
(a) any contingent liability of, or any Lien on the property of, any
Subsidiary Owner with respect to any Office Building Property if
and to the extent that such contingent liability or Lien (a)
exists on the date hereof and (b) is for, or secures,
Indebtedness of the kind referred to in clause (i) or (ii) of the
preceding sentence outstanding on the date hereof or any
Indebtedness Incurred in a Refinancing Transaction to Refinance
such Indebtedness; provided, however, that, in the case of
Indebtedness so Incurred to Refinance such Indebtedness, (A) such
Incurred Indebtedness shall not be secured by any Lien on any
property of the Company or any Subsidiary Owner except (1) to the
extent that there is a Lien on such property as security for the
Indebtedness being Refinanced and (2) Indebtedness secured by an
Office Building Property
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may also be secured by a nonrecourse pledge of shares of a
class of Capital Stock (which class of Capital Stock is
entitled to elect one director) of the GP Subsidiary Owner
with respect to such Office Building Property, and (B) such
Incurred Indebtedness shall not be Indebtedness of the Company
or of any Subsidiary Owner except (1) to the extent that the
Indebtedness being Refinanced is Indebtedness of the Company
or such Subsidiary Owner, as the case may be, and (2) that
Indebtedness secured by an Office Building Property may also
be secured by a nonrecourse pledge of shares of a class of
Capital Stock (which class of Capital Stock is entitled to
elect one director) of the GP Subsidiary Owner with respect to
such Office Building Property.
(b) any contingent liability of, or any Lien on the Property of, a GP
Subsidiary Owner with respect to two or more Office Building
Properties if and to the extent that such contingent liability or
Lien is for, or secures, (a) any Indebtedness of any Subsidiary
Owner with respect to any of such Office Building Properties or
(b) any Indebtedness secured by a Lien on any of such Office
Building Properties or on any Equity Interest in any Subsidiary
Owner with respect to any of such Office Building Properties.
ARTICLE 5.
SUCCESSOR ENTITY
SECTION 5.1. When the Company May Merge or Transfer Assets. The
Company shall not consolidate with, merge with or into, or sell, lease,
transfer, convey or otherwise dispose of all or substantially all of its assets
(in one transaction or a series of related transactions) to, any Person (the
Person formed by or surviving such consolidation or merger, or to which such
sale, lease, conveyance or other disposition shall have been made, whether the
Company or another Person, being herein called the "Surviving Entity") unless:
(i) the Surviving Entity (if other than the Company) shall be a
corporation, limited liability company or partnership organized and
existing under the laws of the United States or any State thereof or
the District of Columbia and shall expressly assume, by a supplemental
indenture, executed and delivered to the Trustee, in form satisfactory
to the Trustee, all of the obligations of the Company under the Notes
and this Indenture;
(ii) immediately before and immediately after giving effect to
such transaction, no Event of Default and no Default shall have
occurred and be continuing; and
(iii) immediately after giving effect to such transaction on a
pro forma basis, the Consolidated Net Worth of the Surviving Entity
(without giving effect to any write-up of assets of the Company and/or
any other Person in which the Company owned, directly or indirectly,
any Equity Interest immediately prior to such transaction as a result
of purchase accounting but after adjusting (to fair market value) the
value of all real estate interests held immediately prior to such
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transaction by Persons other than the Company and Persons in which
the Company then owned, directly or indirectly, any Equity
Interest) is at least equal to the Consolidated Net Worth of the
Company immediately prior to such transaction.
SECTION 5.2. Surviving Entity Substituted. Upon any consolidation or
merger or any transfer of all or substantially all of the assets of the Company
in accordance with this Article 5, the Surviving Entity (if other than the
Company), upon compliance with the provisions of clause (i) of Section 5.1
hereof, shall succeed to, and be substituted for, and may exercise every right
and power of the Company under this Indenture with the same effect as if such
Surviving Entity had been named as the Company herein; and thereafter (provided
that there has been compliance with the provisions of Section 5.1) the
predecessor company shall be discharged and released from all obligations and
covenants under this Indenture and the Notes; provided, however, that nothing in
Article V shall limit or affect in any way the Company's obligations under this
Indenture which arise out of a Change in Control that occurred upon, or prior
to, the consummation of any consolidation, merger or transfer of all or
substantially all of the assets of the Company.
SECTION 5.3. CP Certificate and Opinion of Counsel. Any consolidation,
merger, sale, lease or conveyance permitted under Section 5.1 is also subject to
the condition that the Trustee receive a CP Certificate and an Opinion of
Counsel to the effect that such consolidation, merger, sale, lease or
conveyance, and the assumption by any Surviving Entity, complies with the
provisions of this Article and that all conditions precedent herein provided for
relating to such transactions have been complied with.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default. An "Event of Default" occurs if one of
the following shall occur:
(i) the Company defaults in the payment, when due and payable, of
(A) interest on the Notes and the default continues for a period of 10
days, or (B) the principal of or premium, if any, on the Notes when
the same becomes due and payable, whether at maturity, on the
Redemption Date, on the Special Offer Payment Date, by acceleration or
otherwise;
(ii) the Company fails to make or consummate any Special Offer,
as, when and to the extent required by the provisions of Section 3.7
hereof and Sections 4.9, 4.10 or 4.17 hereof, as the case may be;
(iii) the Company fails to comply in any respect with any of the
provisions of Section 5.1 hereof;
(iv) any representation or warranty contained in Article 12 of
this Indenture shall be untrue as of the Effective Date in any
material respect;
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(v) the Company fails to comply in any respect with any provision
of Section 4.6, Section 4.7, Section 4.19 or Section 4.20 of this
Indenture and such failure continues for 30 days after receipt by the
Company of a written notice from the Trustee or the Holders of at
least 25% of the then outstanding principal amount of the Notes
(excluding any Note then held by the Company or an Affiliate of the
Company);
(vi) the Company fails to comply in any material respect with any
other provision in this Indenture or the Notes and such failure
continues for 30 days after receipt by the Company of a written notice
from the Trustee or the Holders of at least 25% of the then
outstanding principal amount of the Notes (excluding any Note then
held by the Company or an Affiliate of the Company);
(vii) there shall be a default under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness of the Company or any of its
Significant Subsidiaries (other than an Exempt Subsidiary), which
default shall have resulted in the acceleration of such Indebtedness
prior to its stated final maturity and the principal amount of such
Indebtedness exceeds $5,000,000;
(viii) there shall be judgments against the Company or any
Significant Subsidiary (other than an Exempt Subsidiary) rendered by a
court or other tribunal of competent jurisdiction aggregating (for the
Company and all Significant Subsidiaries (other than an Exempt
Subsidiary) in the aggregate) in excess of $5,000,000 and (a) such
judgments are not stayed or discharged within 60 days after their
entry or (b) an enforcement proceeding shall have been commenced (and
not discharged, stayed or settled) by any creditor upon any such
judgments;
(ix) the Company, a Controlling Partner, or any Significant
Subsidiary (other than an Exempt Subsidiary):
(A) commences a voluntary case or proceeding under any
Bankruptcy Law;
(B) consents to the entry of an order for relief against it in
an involuntary case or proceeding under any Bankruptcy Law;
(C) consents to the appointment of a Custodian of it or for all
or any substantial part of its property;
(D) makes a general assignment for the benefit of its creditors;
(E) admits in writing its inability to pay its debts generally
as they become due; or
(F) dissolves or is deemed dissolved as a matter of law or
contract (unless, in the case of a partnership, the same is
contemporaneously reconstituted pursuant to a provision in
its partnership agreement);
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(x) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company, a Controlling Partner or
any Significant Subsidiary (other than an Exempt Subsidiary)
of the Company in an involuntary case or proceeding;
(B) appoints a Custodian of the Company, a Controlling Partner
or any Significant Subsidiary (other than an Exempt
Subsidiary) for all or a substantial part of its properties;
or
(C) orders the liquidation or dissolution of the Company, a
Controlling Partner, or any Significant Subsidiary (other
than an Exempt Subsidiary);
and in any such case the order or decree remains unstayed and in effect for
60 days;
(xi) default by the Company in the conversion of any Note in
accordance with the terms hereof and thereof, which default continues
for three Business Days after written notice thereof from any Holder
to the Company and the Trustee;
(xii) there is a default in payment, when due and payable, of any
installment of principal or interest on the TIAA Note, which default
shall have resulted in the acceleration of the TIAA Note prior to its
final stated maturity.
(xiii) there shall be a default under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness of the Company that is
subordinated in right of payment to the Notes, which default shall
have resulted in the acceleration of such Indebtedness prior to its
stated final maturity; or
(xiv) the opinion or the CP certificate contemplated by Section
4.18 hereof are not delivered to the Trustee on the date hereof.
SECTION 6.2. Acceleration. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% of the then outstanding
principal amount of the Notes (excluding any Note then held by the Company or an
Affiliate of the Company), by written notice to the Company (and to the Trustee
if such notice is given by such Holders) (the "Acceleration Notice"), may, and
the Trustee at the written request of such Holders shall, declare all unpaid
principal of, premium, if any, on and accrued interest on the Notes to be
immediately due and payable, and thereupon the Trustee may in its discretion
proceed to protect and enforce the rights of the Holders of the Notes by
judicial proceedings to the extent that the Trustee has been fully indemnified
in connection therewith and subject to Section 6.5 hereof.
A copy of the Acceleration Notice shall be deemed to have been duly
delivered upon receipt, if personally delivered; when transmitted with
confirmation of receipt, if
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transmitted by telecopy; the day after being sent, if sent for next day delivery
to a domestic address by a recognized overnight delivery service; and upon
receipt, if sent by registered or certified mail, return receipt requested. Upon
a declaration of acceleration, such principal, premium, if any, and accrued
interest shall be immediately due and payable. Notwithstanding anything to the
contrary contained herein, if an Event of Default under Section 6.1(ix) or
Section 6.1(x) occurs with respect to the Company, all unpaid principal of,
premium, if any, and accrued interest on the Notes then outstanding shall become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder. Holders of a majority of the then outstanding
principal amount of the Notes (excluding any Note then held by the Company or an
Affiliate of the Company) by notice to the Trustee may rescind an acceleration
and its consequences, except an acceleration due to (i) default in payment of
principal, premium, if any, or interest on the Notes, (ii) failure to make or
consummate any Special Offer or to pay any amounts in connection therewith or
(iii) default in respect of conversion of a Note pursuant to Article 11.
SECTION 6.3. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of, premium, if any, or interest
on the Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess the Notes or does not produce the Notes in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an Event of Default or a Default shall not impair the right or
remedy or constitute a waiver of, or acquiescence in, the Event of Default or
the Default. No remedy is exclusive of any other remedy. To the extent permitted
by law, all available remedies are cumulative.
SECTION 6.4. Waiver of Past Defaults. The holders of at least 66 2/3%
of the then outstanding principal amount of the Notes (excluding any Note then
held by an Affiliate of the Company), by notice to the Trustee (and without
notice to any other Noteholder), may waive an existing Default or Event of
Default and its consequences except (a) an Event of Default or a Default in the
payment of principal of, premium, if any, or interest on the Notes, in respect
of conversion of a Note or in connection with the making or consummation of a
Special Offer, and (b) a Default in respect of a provision that under Section
9.2 hereof can be amended only with the consent of each Noteholder affected.
When a Default or Event of Default is waived, it is cured and ceases to exist,
but no such waiver shall extend to any subsequent or other Default or impair any
consequent right.
SECTION 6.5. Control by Holders. The holders of a majority of the then
outstanding principal amount of the Notes (excluding any Note then held by the
Company or an Affiliate of the Company) may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or that
the Trustee determines in good faith is unduly prejudicial to the rights of
other Noteholders or would involve the Trustee in personal liability. The
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
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SECTION 6.6. Limitation on Suits. Except as provided in Section 6.7
hereof, a Noteholder may not pursue any remedy with respect to this Indenture or
the Notes unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% of the then outstanding principal
amount of the Notes (excluding any Note then held by the Company or an Affiliate
of the Company) make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity or security
reasonably satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 30 days after
receipt thereof and the offer of indemnity or security; and
(5) during such 30-day period the holders of beneficial interests of a
majority of the then outstanding principal amount of the Notes (excluding any
Note then held by the Company or an Affiliate of the Company) do not give the
Trustee a direction inconsistent with the request.
Notwithstanding anything to the contrary contained in this Section
6.6, any Holder of the Notes shall have the right to institute a proceeding with
respect to this Indenture or the Notes or for any remedy in each of the
following instances:
(w) a Holder of a Note may institute suit for enforcement of payment
of principal of and premium, if any, or interest on such Note on or after the
due dates expressed in such Note (including upon acceleration thereof);
(x) a Holder of a Note may institute suit for enforcement of payment
of any Special Offer Purchase Price in respect of such Note after the relevant
Special Offer Payment Date;
(y) a Holder of a Note may institute suit for enforcement of its
conversion rights set forth in Article 11 hereof; or
(z) Holders of at least 66 2/3% of the then outstanding principal
amount of the Notes (excluding any Note then held by the Company or an Affiliate
of the Company) may institute any proceeding with respect to this Indenture or
the Notes or any remedy thereunder, including without limitation acceleration;
provided that, upon institution of any proceeding or exercise of any remedy such
holders provide the Trustee with prompt written notice thereof.
A Noteholder may not use this Indenture to prejudice the rights of any
other Noteholder or to obtain a preference or priority over any other
Noteholder.
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SECTION 6.7. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
the principal amount, premium, if any, or interest, in respect of the Notes held
by such Holder, on or after the due dates expressed in the Notes, any Redemption
Date, any Special Offer Payment Date or to bring suit for the enforcement of any
such payment on or after such dates or to convert such Notes, shall not be
impaired or affected adversely without the consent of such Holder.
SECTION 6.8. Collection Suit by Trustee. If an Event of Default
described in Section 6.1(i) hereof occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount owing with respect to the Notes and the amounts
provided for in Section 7.7 hereof.
SECTION 6.9. Trustee May File Proofs of Claim. In connection with any
judicial proceeding involving the Company, its creditors or its property, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(1) to file and prove a claim for the whole amount of the principal
amount, premium, if any, and interest on the Notes and to file such other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding; and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any Custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant
to this Article 6, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.7 hereof;
SECOND: to Noteholders for amounts due and unpaid on the Notes for the
Redemption Price, Special Offer Purchase Price, principal amount, premium or
interest, if
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any, as the case may be, ratably, without preference or priority of any kind,
according to such amounts due and payable on the Notes; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 6.10.
SECTION 6.11. Undertaking For Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to
pay the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant; provided, however, that the provisions of this
Section 6.11 shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% of the aggregate principal amount of the Notes outstanding (excluding
any Note then held by the Company or an Affiliate of the Company), to any suit
instituted by any Holder for the enforcement of the payment of the principal of,
premium, if any, Special Offer Purchase Price or interest on any Note on or
after the due date expressed in such Note, or to any suit instituted by any
Holder for the enforcement of such Holder's conversion rights in respect of any
Note after the date on which such Note has been surrendered for conversion in
accordance with the provisions of Section 11.2 hereof.
ARTICLE 7. TRUSTEE
SECTION 7.1. Duties of Trustee.
(1) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care in its exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(2) Except during the continuance of an Event of Default:
(A) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others; and
(B) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However,
in the case of any such certificates or opinions which by
any provision hereof are specifically required to be
furnished to the
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Trustee, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the
requirements of this Indenture.
(3) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(A) this paragraph (3) does not limit the effect of paragraph
(2) of this Section 7.1;
(B) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved
that the Trustee was negligent in ascertaining the pertinent
facts; and
(C) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5 hereof.
(4) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (1), (2), (3) and (5) of this Section 7.1 and
Section 7.2.
(5) The Trustee shall be under no obligation to perform any duty or
to exercise any of the rights or powers vested in it by this Indenture or to
expend or risk its own funds or otherwise incur any financial liability at the
request or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity reasonably
satisfactory to it against any loss, liability or expense which might be
incurred by it in compliance with such request or direction.
(6) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall not be liable for the payment of any interest on any money deposited with
it except to the extent agreed upon with the Company in writing.
SECTION 7.2. Rights of Trustee.
(1) Subject to Section 7.1(2)(B), the Trustee may rely on any
document reasonably believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may
require a CP Certificate and an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such CP Certificate and Opinion of Counsel.
(3) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
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(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be authorized or
within its rights or powers conferred upon it by the Indenture.
(5) The Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
SECTION 7.3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of the Notes
(or certain portions thereof) and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Paying
Agent or Registrar may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11 hereof.
SECTION 7.4. Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the Notes. It
shall not be accountable for the use or application of any moneys paid over by
the Trustee in accordance with any provision of this Indenture, or for the use
or application of any moneys received by any Paying Agent other than the
Trustee. It shall not be responsible for any statement in any registration
statement for the Notes under the Securities Act (other than statements
contained in any Form T-1 filed with the Commission under the TIA) or in this
Indenture or the Notes (other than its certificate of authentication).
SECTION 7.5. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to the
Noteholders, as their names and addresses appear on the Register, notice of the
Event of Default within 30 days after a Trust Officer receives written notice
thereof stating that it is a notice of "Default" and citing the applicable
subsection of Section 6.1 and identifying this Indenture, unless such Default
has been cured or waived. The Trustee shall not be deemed to have notice of any
Default until a Trust Officer shall have received written notice thereof
referring expressly to this Indenture and citing the applicable subsection of
Section 6.1 hereof. The second sentence of this Section 7.5 shall be in lieu of
the proviso to Section 315(b) of the TIA and said proviso is hereby expressly
excluded from this Indenture, as permitted by the TIA.
SECTION 7.6. Reports by Trustee to Holders. Within 60 days
after each September 1 beginning with September 1, 1997, the Trustee shall mail
to each Noteholder a brief report dated as of such September 1 in accordance
with and to the extent required under Section 313(a) of the TIA. The Trustee
shall also comply with the reporting requirements of Section 313(b) of the TIA,
to the extent applicable. In addition, the Trustee shall mail to each Noteholder
copies of all materials received from the Company pursuant to the Indenture and
not otherwise provided to the Noteholders. All reports sent by the Trustee
pursuant to this Section 7.6 will be sent in compliance with Section 313(b) of
the TIA.
SECTION 7.7. Compensation and Indemnity. The Company agrees:
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(1) to pay to the Trustee from time to time such reasonable
compensation as shall be agreed in writing between the Company and the Trustee
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) to reimburse the Trustee upon its request for all
reasonable and documented expenses, disbursements and advances (if any) incurred
or made by the Trustee in accordance with any provision of this Indenture,
including the reasonable compensation and the expenses, disbursements and
advances of its agents and counsel) and all reasonable expenses, disbursements
and advances incurred or made by the Trustee in connection with any membership
on any creditor's committee, excluding, however, any such expense, disbursement
or advance that may be attributable to the negligence or bad faith of the
Trustee or its agents or counsel;
(3) to reimburse the Trustee's counsel on the Effective Date
for its fees and expenses in connection with review and revision and delivery of
this Indenture and related documentation; and
(4) to indemnify the Trustee in its capacity as such, (which
for purposes of this subsection (4) shall include its officers, directors,
employees, and agents) for, and to hold it harmless against, any and all loss,
liability, costs, claim (including the fees and disbursements of counsel), or
expense, incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of this Indenture or
performance of its duties hereunder, including the reasonable and documented
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
The Trustee shall have a claim and lien prior to the Notes as
to all property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 7.7, except with respect to funds
held in trust for the payment of principal of, premium, if any, or interest on
particular Notes or portions thereof.
The Company's payment obligations pursuant to this Section 7.7
shall survive the resignation or removal of the Trustee and the discharge of
this Indenture. When the Trustee renders services or incurs expenses after the
occurrence of a Default specified in Section 6.1(viii) or Section 6.1(ix)
hereof, the compensation for services and expenses are intended to constitute
expenses of administration under any Bankruptcy Law.
SECTION 7.8. Replacement of Trustee. The Trustee may resign
for any reason by so notifying the Company in writing at least 45 days prior to
the date of the proposed resignation; provided, however, no such resignation
shall be effective until a successor Trustee has accepted its appointment
pursuant to this Section 7.8. The Holders of at least a majority of the then
outstanding principal amount of the Notes (excluding any Note then held by the
Company or an Affiliate of the Company) may remove the Trustee by so notifying
the Trustee and the Company in writing and may appoint a successor Trustee
subject to the consent of the Company. The Trustee shall resign and the Company
may remove the Trustee if:
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(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged bankrupt or insolvent or an order of
relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a Custodian, receiver or public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of the Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Noteholders. Subject to payment of all amounts owing to the
Trustee under Section 7.7 hereof and subject further to its lien under Section
7.7, the retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee.
If a successor Trustee does not take office within 45 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of beneficial interests of at least a majority of the then outstanding
principal amount of the Notes (excluding any Note then held by an Affiliate of
the Company) may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
SECTION 7.9. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets (including this Trusteeship) to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee; provided that such successor is
eligible under Section 7.10 hereof.
SECTION 7.10. Eligibility; Disqualification. There shall at all times
be a Trustee hereunder which shall (i) be a corporation organized and doing
business under the laws of the United States of America or of any state thereof
authorized under such laws to exercise corporate trustee power and (ii) be
subject to supervision or examination by Federal or state authority. The Trustee
shall at all times satisfy the requirements of TIA ss. 310(a)(1). The Trustee
shall have a combined capital and surplus of at least $50,000,000 or such other
amount as required by the TIA hereafter, as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA ss.
310(b). In determining whether the Trustee has conflicting interests as defined
in TIA ss. 310(b)(1), the provisions contained in the proviso to TIA ss.
310(b)(1) shall be deemed incorporated herein. If the Trustee
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acquires any such conflicting interest, it must eliminate such conflict within
90 days, apply to the Commission for permission to continue as Trustee under
this Indenture, or resign. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect specified in Section 7.8.
SECTION 7.11. Preferential Collection of Claims Against the Company.
If the Trustee shall be or become a creditor of the Company (or any other
obligor under the Notes), the Trustee shall be subject to the provisions of the
TIA regarding the collection of claims against the Company (or any such other
obligor). If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect specified in Section 7.8.
ARTICLE 8.
DISCHARGE OF INDENTURE; LEGAL DEFEASANCE
AND COVENANT DEFEASANCE
SECTION 8.1. Legal Termination. This Indenture shall cease to be of
further effect (except that the Company's obligations under Section 7.7 and the
Trustee's and Paying Agent's obligations under Section 8.7 shall survive), when
the Notes previously authenticated and delivered (other than destroyed, lost or
stolen Notes which have been replaced or paid) have been delivered to the
Trustee for cancellation or conversion and the Company has paid and delivered
all sums payable or deliverable, and issued all Class A Interests required to be
issued, by it hereunder.
SECTION 8.2. Company's Option to Effect Legal Defeasance or Covenant
Defeasance. The Company may, at its option at any time, elect to have either
Section 8.3 or Section 8.4 applied to the Notes upon compliance with the
conditions set forth below in this Article 8.
SECTION 8.3. Legal Defeasance and Discharge. Upon the Company's
exercise of the option provided in Section 8.2 applicable to this Section 8.3,
the Company shall be deemed to have been discharged from its obligations with
respect to the Notes (other than those specified below or in Section 8.8), on
the date the conditions set forth in Section 8.5 are satisfied (hereinafter
"Legal Defeasance"). For this purpose, such Legal Defeasance means that the
Company shall be deemed to have paid and discharged the entire Indebtedness
represented by the Notes, which shall thereafter be deemed to be "outstanding"
only for the purposes of the sections of, and matters under, this Indenture
referred to in clauses (A) and (B) below and to have satisfied all its other
obligations under the Notes and this Indenture insofar as the Notes are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of the Notes to receive, solely from the trust fund described in Section
8.5(i) and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest on the Notes when such payments are
due, (B) the Company's obligations with respect to the Notes under Sections 2.3,
2.6, 2.7 and 2.10, (C) the rights, powers, trusts, duties and
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immunities of the Trustee hereunder and the Company's obligations in connection
therewith, and (D) this Article 8 and Article 11. Subject to compliance with
this Article 8, the Company may exercise its option under this Section 8.3
notwithstanding the prior exercise of its option under Section 8.4.
SECTION 8.4. Covenant Defeasance. Upon the Company's exercise of the
option provided in Section 8.2 applicable to this Section 8.4 on the date the
conditions set forth in Section 8.5 are satisfied, (i) the Company shall be
released from its obligations under Articles 4 and 5 hereof except Sections 4.1
and 4.2 and (ii) the occurrence of an event specified in Section 6.1 with
respect to any of the provisions of Articles 4 or 5 hereof shall not be deemed
to be an Event of Default on and after the date the conditions set forth below
are satisfied (hereinafter, "Covenant Defeasance").
SECTION 8.5. Conditions to Legal Defeasance and Covenant Defeasance.
The following shall be the conditions to application of Section 8.3 or Section
8.4 to the then outstanding Notes:
(i) the Company must have irrevocably deposited with the Trustee, in
trust, for the benefit of the Holders of the Notes, Cash in immediately
available funds sufficient (excluding interest income), in the opinion of a
nationally recognized firm of independent public accountants, to pay the
principal of, premium, if any, and interest on, with respect to the Notes on the
Stated Maturity Date of the Notes or on the Redemption Date, as the case may be,
of such principal of, premium, if any, and interest on the Notes; (ii) in the
case of Legal Defeasance, the Company shall have delivered to the Trustee an
Opinion of Counsel confirming that the Holders of the Notes will not recognize
income, gain or loss for Federal income tax purposes as a result of such Legal
Defeasance and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such defeasance
had not occurred, which opinion will state that (A) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling to
such effect, or (B) since the Effective Date there has been a change in the
applicable Federal income tax laws or regulations to such effect; (iii) in the
case of Covenant Defeasance, the Company shall have delivered to the Trustee an
Opinion of Counsel confirming that the Holders of the Notes will not recognize
income, gain or loss for Federal income tax purposes as a result of such
Covenant Defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same time as would have been the case if
such Covenant Defeasance had not occurred; (iv) such Legal Defeasance or
Covenant Defeasance shall not result in a breach or violation of or constitute a
default under any material agreement or instrument to which the Company is a
party or by which it is bound; (v) the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that after the 91st day (or such
other applicable date) following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally; (vi) the Company shall
have delivered to the Trustee a CP Certificate stating that the deposit was not
made by the Company with the intent of preferring the Holders over the other
creditors of the Company or with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others; and (vii) the Company shall have
delivered to the Trustee a CP
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Certificate and an Opinion of Counsel, each stating that all conditions
precedent to such Legal Defeasance or Covenant Defeasance have been satisfied.
After such irrevocable deposit made pursuant to this Section 8.5 and
satisfaction of the other applicable conditions set forth in this Section 8.5,
the Trustee upon request shall acknowledge in writing the discharge of the
Company's obligations under this Indenture except for those surviving
obligations specified above.
The Trustee shall hold in trust Cash deposited with it pursuant to
this Section 8.5. It shall apply the deposited money through the Paying Agent
and in accordance with this Indenture to the payment of principal of, premium,
if any, and interest on the Notes.
SECTION 8.6. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money in accordance with Section 8.3 or Section 8.4 by reason of
any legal proceeding or of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Notes shall be revived
and reinstated as though no deposit had occurred pursuant to this Article 8
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with this Article 8; provided, however, that if the Company
makes any payment of principal, premium, if any, or interest on the Notes
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of the Notes to receive such payment from the money
held by the Trustee or Paying Agent.
SECTION 8.7. Repayment to the Company. Subject to Section 7.7, the
Trustee and the Paying Agent shall promptly pay to the Company upon written
request any excess money (including money which becomes excess by reason of
conversions of Notes) held by them at any time. The Trustee and the Paying Agent
shall return to the Company upon written request any money held by them for the
payment of any amount with respect to the Notes that remains unclaimed for two
years after the date upon which such payment shall have become due; provided,
however, that the Trustee or such Paying Agent, before being required to make
such return, may, in the name and at the expense of the Company, cause to be
published once in The Wall Street Journal or a comparable daily newspaper of
national circulation or mail to each such Holder notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such mailing or publication, any unclaimed money then
remaining will be returned to the Company. After the unclaimed money is returned
to the Company, Holders entitled to the money must look to the Company for
payment as general creditors unless an applicable abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
SECTION 8.8. Survival of Holders' Conversion Rights and Company's
Obligation to Provide Reports. Notwithstanding anything to the contrary in this
Article 8, the right of Holders to convert any Notes held by them into Class A
Interests of the Company pursuant to Article 11 shall not be impaired or
terminated by reason of any Legal Defeasance or Covenant Defeasance but shall
continue in existence until the Stated Maturity Date of the Notes or the Notes
are redeemed or repurchased pursuant to Article 3.
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Notwithstanding anything to the contrary in this Article 8, the Company's
obligation to provide all reports under Section 4.2 shall continue after any
Legal Defeasance or Covenant Defeasance until the Stated Maturity Date of the
Notes or the Notes are redeemed pursuant to Article 3.
ARTICLE 9.
AMENDMENTS
SECTION 9.1. Without Consent of Holders. From time to time, the
Company and the Trustee, without notice to or the consent of the Holders of the
Notes, may amend or supplement this Indenture or the Notes as follows:
(1) to comply with Article 5 hereof;
(2) to cure any ambiguity or to correct or supplement any provision
herein that may be defective or inconsistent with any other provision herein;
provided that no such amendment or supplement shall adversely affect the
interests of the Noteholders in any respect; or
(3) to make provision with respect to the conversion rights of Holders
pursuant to the requirements of Section 11.4(c).
SECTION 9.2. With Consent of Holders. With the written consent of the
Holders of at least 66 2/3% of the then outstanding principal amount of the
Notes (excluding any Note then held by the Company or an Affiliate of the
Company), the Company and the Trustee may amend or supplement this Indenture or
the Notes or may waive any existing Default or future compliance by the Company
with any provisions of this Indenture or the Notes (other than a continuing
Default or Event of Default in the payment of principal, premium, if any, or
interest on the Notes). However, without the consent of each Noteholder
affected, a waiver or an amendment to this Indenture or the Notes may not (with
respect to any portion held by a non-consenting Holder of the Notes):
(1) reduce the percentage of principal amount of the Notes whose
Holders must consent to an amendment or waiver or to the rescission of an
acceleration of the Notes or increase the percentage of principal amount of the
Notes whose Holders must consent to any acceleration of the Notes; or
(2) make any change to the Stated Maturity Date or the time, currency
or amount of payment of the principal of, premium, if any, or any interest on,
the Notes or alter any of the redemption provisions or other provisions with
respect thereto; or
(3) waive a default in the payment of the principal of, premium, if
any, or interest on, the Notes, or in respect of conversion of a Note or in
connection with the making or consummation of a Special Offer; or
(4) make any change to this Section 9.2;
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(5) make any change to the provisions of this Indenture which
adversely affects the conversion right set forth in Article 11 hereof; or
(6) make any change to any definition which would have the effect of
making a change in items (1) through (5) above.
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment or
supplement, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment or waiver under this Section 9.2 becomes effective,
the Company promptly shall mail or cause to be mailed to each Holder a notice
briefly describing the amendment or waiver. Any failure of the Company to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such amendment or waiver.
SECTION 9.3. Supplemental Indentures. Every amendment to this
Indenture or the Notes shall be set forth in a supplemental indenture executed
pursuant to this Article 9 which shall comply with the TIA.
SECTION 9.4. Revocation and Effect of Consents, Waivers and Actions.
Until an amendment, supplement, waiver or other action by Holders becomes
effective a consent to it or any other action by a Holder of the Notes hereunder
is a continuing consent by the Holder and every subsequent Holder of the Notes
or portion of the Notes that evidences the same obligation as the consenting
Holder's Notes or portion thereof, even if notation of the consent, waiver or
action is not made on the Notes. However, any such Holder or subsequent Holder
may revoke the consent, waiver or action as to such Holder's Notes or portion of
the Notes if the Trustee receives notice of revocation before the consent of the
requisite then outstanding principal amount of the Notes has been obtained and
becomes effective. After an amendment, supplement, waiver or action becomes
effective, it shall bind every Noteholder, except as provided in Section 9.2
hereof.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement, or waiver. If a record date is fixed, then, notwithstanding the
first two sentences of the immediately preceding paragraph, those Persons who
were Holders at such record date (or their duly designated proxies), subject to
Section 9.7 and excluding Affiliates of the Company, and only those Persons,
shall be entitled to consent to such amendment, supplement or waiver or to
revoke any consent previously given, whether or not such Persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 30 days after such record date, unless consents from holders of the
then outstanding principal amount of the Notes required hereunder for such
amendment, supplement or waiver to be effective shall have also been given and
not revoked within such 30-day period.
SECTION 9.5. Notation on or Exchange of the Notes. Notes authenticated
and made available for delivery after the execution of any supplemental
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indenture pursuant to this Article 9 may, and shall, if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Notes so
modified as to conform, in the reasonable judgment of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and made available for delivery by the Trustee in
exchange for the outstanding Notes.
SECTION 9.6. Trustee to Sign Supplemental Indentures. Upon the request
of the Company, the Trustee shall join with the Company in the execution of any
amendment or supplemental indenture authorized or permitted by the terms of this
Indenture but the Trustee shall not be obligated to execute any such amendment
or supplemental indenture which adversely affects its own rights, duties,
liabilities or immunities under this Indenture or otherwise. In signing such
amendment or supplemental indenture the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, a CP Certificate and Opinion of
Counsel stating that such amendment or supplemental indenture is authorized or
permitted by this Indenture.
SECTION 9.7. Effect of Amendments and Supplemental Indentures. Upon
the execution of any amendment or supplemental indenture under this Article 9,
this Indenture shall be modified in accordance therewith, and such amendment or
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of the Notes theretofore or thereafter authenticated and made
available for delivery hereunder shall be bound thereby.
ARTICLE 10.
MISCELLANEOUS
SECTION 10.1. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by operation of
subsection (c) of Section 318 of the TIA, the imposed duties shall control. The
provisions of Sections 310 to 317, inclusive, of the TIA that impose duties on
any Person (including provisions automatically deemed included in an indenture
unless the indenture provides that such provisions are excluded) are a part of
and govern this Indenture, except as, and to the extent, expressly excluded from
this Indenture, as permitted by the TIA.
SECTION 10.2. Notices. Any notice, request or communication shall be
in writing and delivered (i) in Person or mailed by first-class mail, postage
prepaid, or (ii), in the case of notices to the Company, by telecopy (with the
original delivered by mail immediately thereafter) addressed as follows:
if to the Company:
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WORLD FINANCIAL PROPERTIES, L.P.
c/o World Financial Properties, Inc.
One Liberty Plaza
New York, New York 1______
Telephone: _______________
Telecopy: ________________
Attention: ______________________
if to the Trustee:
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Department Administration
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication given to a Noteholder shall be mailed to
the Noteholder at the Noteholder's address as it appears on the Register and
shall be sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication is mailed in the manner provided above, it is duly
given, whether or not received by the addressee.
If the Company mails a notice or communication to the Noteholders, it
shall simultaneously mail a copy to the Trustee and each Registrar and Paying
Agent.
SECTION 10.3. Communication by Noteholder with Other Noteholders.
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar, the Paying Agent and anyone else shall have
the protection of TIA Section 312(c).
SECTION 10.4. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(1) a CP Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
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SECTION 10.5. Statements Required in Certificate or Opinion. Each CP
Certificate and Opinion of Counsel with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that each Person making such CP Certificate or Opinion
of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such CP
Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such Person, he has made
such examination or investigation as is necessary to enable such Person to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement that, in the opinion of such Person, such covenant or
condition has been complied with; provided, however, that with respect to
matters of fact, an Opinion of Counsel may rely on a CP Certificate or
certificates of public officials.
SECTION 10.6. Severability Clause. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 10.7. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or at a meeting of Noteholders.
The Registrar and Paying Agent may make reasonable rules for their functions.
SECTION 10.8. Legal Holidays. A "Legal Holiday" is any day other than
a Business Day. If any specified date (including a date for giving notice but
excluding any record date) is a Legal Holiday, the action shall be taken on the
next succeeding Business Day, and, if the action to be taken on such date is a
payment in respect of the Notes, no principal, premium, if any, or interest
installment shall accrue for the intervening period; provided, however, that if
such payment is in respect of principal then interest shall continue to accrue
thereon until the date such payment is actually made.
SECTION 10.9. Governing Law; Submission to Jurisdiction. THIS
INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO INSTRUMENTS
MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS. The Company hereby irrevocably submits to the
jurisdiction of any New York State or United States Federal court sitting in New
York City over any action or proceeding arising out of or relating to this
Indenture or the Notes and the Company hereby irrevocably agrees that all claims
in respect of such action or proceeding may be heard and determined in such New
York State or Federal court. The Company agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by
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suit on the judgment or in any other manner provided by law. The Company further
waives any objection to venue in such State on the basis of forum non
conveniens. The Company agrees that any action or proceeding brought against the
Trustee or any Noteholder shall be brought only in a New York State or United
States Federal court sitting in New York City.
Nothing in this Section 10.9 shall affect the right of the Trustee or
any Noteholder to serve legal process in any other manner permitted by law or
affect the right of the Trustee or any Noteholder to bring any action or
proceeding against the Company or its property in the courts of any other
jurisdictions.
To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether from
service or notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, the Company
hereby irrevocably waives such immunity in respect of its obligations under the
Indenture and the Notes.
SECTION 10.10. Indenture Controls. Notwithstanding anything to the
contrary contained in the Plan or the Order of the Bankruptcy Court confirming
the Plan, if there is any conflict or inconsistency between the terms and
provisions of the Plan or such Order and this Indenture, the terms and
provisions of this Indenture shall control as among the Company, the Noteholders
and the Trustee.
SECTION 10.11. Successors. All agreements of the Company in this
Indenture and the Notes shall bind its successors and assigns. All agreements of
the Trustee in this Indenture shall bind its successor and assigns.
SECTION 10.12. Multiple Originals; Counterparts. The parties may sign
any number of copies of this Indenture in counterparts. Each signed copy shall
be an original, but all of them together represent the same agreement. One
signed copy is enough to prove this Indenture.
ARTICLE 11.
CONVERSION OF NOTES
SECTION 11.1. Conversion Privilege and Conversion Price. Subject to
and upon compliance with the provisions of this Article, at the option of the
Holder thereof, any Note or any portion of the principal amount thereof which is
$1,000 or an integral multiple of $1,000 may be converted at the principal
amount thereof, or of such portion thereof, plus accrued and unpaid interest
thereon through the relevant date of conversion into Class A Interests
(calculated to the nearest 1/10,000th of a Class A Interest, with 5/100,000ths
of a Class A Interest being considered as nearer to the next highest 1/10,000th
of a Class A Interest) at the Conversion Price (as hereinafter defined),
determined as hereinafter provided, in effect at the time of conversion. In case
a Note or portion thereof is called for redemption pursuant to Section 3.1, such
conversion right in respect of the Note or portion so called shall expire at the
close of business on the Redemption Date, unless the Company defaults in making
the payment due upon such redemption.
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The price at which Class A Interests shall be delivered upon
conversion (the "Conversion Price") shall initially be $______ per Class A
Interest, and shall be adjusted from time to time as provided herein, including,
without limitation, pursuant to Section 11.4.
SECTION 11.2. Exercise of Conversion Privilege. In order to exercise
the conversion privilege, the Holder of any Notes to be converted shall
surrender such Notes, accompanied by written notice, to the Conversion Agent at
the office of the Conversion Agent or, if less than the entire principal amount
thereof is to be converted, the portion thereof to be converted. Notes
surrendered for conversion during the period from the close of business on any
regular Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date shall (unless such Notes have been called
for redemption on a Redemption Date within such period) be accompanied by
payment in New York Clearing House funds or other funds acceptable to the
Company of an amount equal to the interest payable on such Interest Payment Date
on the principal amount of Notes being surrendered or delivered for conversion,
as the case may be. Except as provided in the immediately preceding sentence or
in Section 11.1, no other adjustment shall be made for accrued interest on a
converted Note.
Within the Business Day on which any Notes and executed Conversion
Notice are received by the Conversion Agent, the Conversion Agent shall:
(i) notify the Company by facsimile transmission and send by
facsimile transmission a copy of such facsimile (unless the Conversion
Agent with which the Note is deposited is itself the Trustee) to the
Trustee, of the following: (a) the principal amounts of all Notes
deposited on the same occasion by the same Holder which are to be
converted, the number of Class A Interests deliverable upon conversion
and the name and address of such Holder as it appears in the Register
and (b) the date such Notes and the related executed Conversion Notice
were received by it (the "Conversion Date") and the Conversion Price in
respect of such conversion;
(ii) cancel all Notes delivered with such Conversion Notice
and (unless the relevant Conversion Agent is also the Trustee) dispatch
such cancelled Notes promptly to or to the order of the Trustee
together with a certificate stating the serial numbers (if applicable)
of the Notes so delivered; and
(iii) dispatch as soon as practicable and in any event within
three days after satisfaction by the Holder of all conditions precedent
to conversion to the Company, the Conversion Notice and, to the Trustee
(unless the relevant Conversion Agent is also the Trustee), a copy
thereof.
Notes shall be deemed to have been converted immediately prior to the
close of business on the day of surrender of such Notes to the Conversion Agent
for conversion in accordance with the foregoing provisions, and at such time the
rights of the Holders of such Notes as Holders shall cease, and the person or
persons entitled to receive the Class A Interests, issuable upon conversion
shall be treated for all purposes as the record holder or holders of such Class
A Interests at such time. As promptly as practicable on or after the Conversion
Date, but in no event more than three Business Days after the Conversion Date,
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the Company shall issue and shall deliver at the office of the Conversion Agent
a certificate or certificates for the number of Class A Interests (including
fractional Interests) issuable upon conversion; provided, however, that if the
Company reasonably determines in good faith that applicable law requires the
Company to withhold any taxes otherwise payable by a Holder in connection with
the exercise of the conversion privilege, the Company shall give prompt written
notice of such determination to such Holder and such Holder shall be obligated
to fund such tax withholding.* In the event that such Holder does not fund such
tax withholding within fifteen (15) Business Days of receipt of a written demand
for such funding by the Company, the amount of such tax withholding shall be
deemed to be a Withholding Advance (as such term is defined in the Partnership
Agreement as in effect on the date hereof) and the Company shall have all of the
rights and remedies in respect of such Withholding Advance as are provided in
Section 7.12(b) of the Partnership Agreement as in effect on the date hereof.
Upon request by a Holder in advance of any conversion, the Company shall notify
such Holder, within a reasonable period of time, of its determination to
withhold any taxes in connection with any conversion by such Holder.
In the case of any Note which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Note or
Notes of authorized denominations in aggregate principal amount equal to the
unconverted portion of the principal amount of such Note in the case of
certificated Notes.
SECTION 11.3. Intentionally Deleted.
SECTION 11.4. Adjustment of Conversion Price. The Conversion Price and
the kind of Equity Interests issuable upon Conversion of Notes shall be subject
to adjustment as set forth below in this Section 11.4. The Company shall give
Holders notice of any event described below which requires an adjustment
pursuant to this Section 11.4 in accordance with the provisions of Section 11.5.
(a) Distributions, Subdivisions and Combinations. If at any
time the Company shall (i) fix a record date for the purpose of
determining the holders of Class A Interests entitled to receive a
distribution of Partnership Interests; (ii) subdivide its outstanding
Partnership Interests into a larger number of Partnership Interests;
(iii) combine its outstanding Partnership Interests into a smaller
number of Partnership Interests; or (iv) issue any other Equity
Interests by reclassification of the Partnership Interests (other than
pursuant to Section 11.4(c) below); then the Conversion Price shall be
proportionately decreased in the case of such a distribution of
Partnership Interests or such a subdivision, or proportionately
increased in the case of such a combination, or the kind of Equity
Interests of the Company which may be purchased shall be adjusted in
the case of such a reclassification of the Partnership Interests, each
on the record date for such distribution or effective date of such
- --------
* [Cahill to suggest language for form of Conversion Notice to the extent
necessary to provide for admission of the converting Holder as a
Limited Partner and for agreement of converting Holder to be bound by
Partnership Agreement as a Limited Partner.]
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subdivision, combination or reclassification, as the case may be, such
that each Holder shall be entitled to receive, upon conversion of the
Notes held by such Holder, the aggregate number and kind of Partnership
Interests which, if such Notes had been fully converted immediately
prior to such date, it would have owned upon such conversion and been
entitled to receive by virtue of such distribution, subdivision,
combination or reclassification.
(b) Certain Other Distributions. If at any time the Company
shall fix a record date for the purpose of determining the holders of
Class A Interests entitled to receive any distribution (including any
such distribution made in connection with a consolidation or merger,
but excluding any distribution referred to in Section 11.4(a)) of:
(i) any evidences of indebtedness, any Equity
Interests of the Company (including Convertible Securities but
excluding Partnership Interests) or any other securities or
property of any nature whatsoever (including cash but
excluding normal cash distributions permitted under applicable
law so long as in each case such cash is payable solely out of
earnings or undistributed income of the Company); or
(ii) any warrants or other rights to subscribe for or
purchase any evidences of its indebtedness, any Equity
Interests of the Company (including Convertible Securities) or
any other of its securities or its property of any nature
whatsoever;
then the Conversion Price shall be adjusted to equal the Conversion
Price in effect prior to such distribution multiplied by a fraction,
(x) the numerator of which shall be (A) the Current Market Price of one
Class A Interest on such record date minus (B) the amount allocable to
one Class A Interest of the fair value of any and all such evidences of
indebtedness, Equity Interests, other securities or property or
warrants or other subscription or purchase rights so distributable (as
determined in good faith by the Controlling Partner(s) and supported by
an opinion from an investment banking firm of nationally recognized
standing), and (y) the denominator of which shall be such Current
Market Price of one Class A Interest. Such adjustments shall be made
whenever such a record date is fixed. A reclassification of Class A
Interests into Partnership Interests and other Equity Interests of the
Company shall be deemed a distribution by the Company to the holders of
Class A Interests of such other Equity Interests within the meaning of
this Section 11.4(b) and, if the outstanding Class A Interests shall be
changed into a larger or smaller number of Partnership Interests as a
part of such reclassification, such change shall be deemed a
subdivision or combination, as the case may be, of the outstanding
Class A Interests within the meaning of Section 11.4(a).
(c) Adjustments for Consolidation, Merger, Sale of Assets,
Reorganization, etc. (i) In case the Company after the date hereof (w)
shall consolidate with or merge into any other Person and shall not be
the continuing or surviving Person of such consolidation or merger, or
(x) shall permit any other Person to consolidate with
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or merge into the Company and the Company shall be the continuing or
surviving Person but, in connection with such consolidation or merger,
the Class A Interests shall be changed into or exchanged for Equity
Interests or other securities of the Company or any other Person or
cash or any other property, or (y) shall transfer all or substantially
all of its properties or assets to any other Person, or (z) shall
effect a capital reorganization or reclassification of the Class A
Interests (other than a capital reorganization or reclassification for
which adjustment in the Conversion Price is provided in Section 11.4(a)
or Section 11.4(b)), then, and in the case of each such transaction,
proper provision shall be made so that, upon the basis and the terms
and in the manner provided herein, each Holder shall be entitled upon
the conversion of Notes at any time after the consummation of such
transaction, to the extent such Notes are not converted prior to such
transaction, to receive at the Conversion Price in effect at the time
immediately prior to the consummation of such transaction in lieu of
the Class A Interests issuable upon such conversion prior to such
transaction the Equity Interests and other securities, cash and
property to which such Holder would have been entitled upon the
consummation of such transaction if such Holder had converted such
Notes immediately prior thereto, subject to adjustments (subsequent to
such action) as nearly equivalent as possible to the adjustments
provided for in this Section 11.4.
(ii) Notwithstanding anything contained herein to the
contrary, the Company will not effect any of the transactions described
in clauses (w) through (z) of Section 11.4(c)(i) unless, prior to the
consummation thereof, the surviving Person (if other than the Company)
in any merger or consolidation described in such clauses, each Person
which acquires the Company's assets in any transaction described in
clause (y) above, and each Person (other than the Company) which may be
required to deliver any Equity Interests, securities, cash or property
upon the conversion of the Notes as provided herein, shall assume, by
written instrument delivered to, and reasonably satisfactory to, the
Trustee, the obligations of the Company hereunder to deliver to Holders
such Equity Interests, securities, cash or property as such Holders
shall be entitled to receive upon conversion of the Notes (and if the
Company shall survive the consummation of such transaction, such
assumption shall be in addition to, and shall not release the Company
from, any continuing obligations of the Company hereunder), and such
Person shall have similarly delivered to the Trustee, an Opinion of
Counsel stating that this Indenture shall thereafter continue in full
force and effect and the terms hereof (including, without limitation,
all of the provisions of this Section 11.4) shall be applicable to the
Equity Interests, securities, cash or property which such Person may be
required to deliver upon any conversion of Notes pursuant hereto.
(d) Issuance of Partnership Interests, Warrants or other
Rights. If at any time the Company shall issue or sell to any Person
any Additional Partnership Interests or warrants or other similar
rights to subscribe for or purchase any Additional Partnership
Interests or Convertible Securities, whether or not the rights to
exchange or convert thereunder are immediately exercisable (but
excluding any distributions for which an adjustment is to be made
pursuant to Sections 11.4(a) or 11.4(b) above), and the price per
Additional Partnership Interest or for which such
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Additional Partnership Interests are issuable upon the exercise of such
warrants or other rights or upon conversion or exchange of such
Convertible Securities shall be less than the Current Market Price per
Partnership Interest then in effect, or without consideration, then the
Conversion Price upon each such issuance shall be adjusted to the
lesser of (x) the Conversion Price that would be in effect in the
absence of the adjustment provided for in this Section 11.4(d) and (y)
that price, which shall be determined by multiplying the Conversion
Price by a fraction:
(1) the numerator of which shall be the
number of Partnership Interests outstanding
immediately prior to the issuance of such Additional
Partnership Interests plus the number of Partnership
Interests which the aggregate consideration for the
total number of such Additional Partnership Interests
so issued would purchase at the Current Market Price
therefor then in effect, and
(2) the denominator of which shall be the
number of Partnership Interests outstanding
immediately after the issuance of such Additional
Partnership Interests.
In the case of the issuance or sale of warrants or other rights or
Convertible Securities, any adjustment under this Section 11.4(d) shall
be made on the basis that (i) the maximum number of Additional
Partnership Interests issuable pursuant to all such warrants or other
similar rights or necessary to effect the conversion or exchange of all
such Convertible Securities shall be deemed to have been issued and
outstanding, (ii) the price per Additional Partnership Interest shall
be deemed to be the lowest possible price per Partnership Interest in
any range of prices per Partnership Interest at which such Additional
Partnership Interests are available to such holders, and (iii) the
Company shall be deemed to have received all of the consideration
payable therefor, if any, as of the date of the actual issuance of such
warrants or other similar rights. No further adjustments of the
Conversion Price shall be made upon the actual issue of such
Partnership Interests upon exercise of such warrants or other similar
rights or upon the actual issue of such Partnership Interests upon such
conversion or exchange of such Convertible Securities. For the purposes
of this Section 11.4(d), the date as of which the Current Market Price
of Partnership Interests shall be computed shall be the earliest of (x)
the date on which the Company shall enter into a firm contract for the
issuance of such warrants or other similar rights or (y) the date of
actual issuance of such warrants or other similar rights. Such
adjustments shall be made upon the date of the issuance or sale of such
warrants or other similar rights.
(e) Issuance of Convertible Securities. If at any time the
Company shall issue or sell to any Person any Convertible Securities
(other than securities distributed in a transaction described in
Sections 11.4(a), 11.4(b) or 11.4(d) above), whether or not the rights
to exchange or convert thereunder are immediately exercisable, the
price per Partnership Interest for which Partnership Interests are
issuable upon such conversion or exchange shall be less than the
Current Market Price per Partnership Interest then in effect on the
date of such issuance or sale or if, after any such
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issuance or sale, the price per Partnership Interest for which
Additional Partnership Interests may be issuable thereafter is amended,
and such price as so amended shall be less than the Current Market
Price in effect at the time of such amendment, then the Conversion
Price upon each such issuance or amendment shall be adjusted (if such
adjustment would result in a lower Conversion Price than would be in
effect in the absence of the adjustment provided for in this Section
11.4(e)) as provided in Section 11.4(d) above on the basis that (i) the
maximum number of Additional Partnership Interests necessary to effect
the conversion or exchange of all such Convertible Securities shall be
deemed to have been issued and outstanding, (ii) the price per
Additional Partnership Interest shall be deemed to be the lowest
possible price in any range of prices at which such Additional
Partnership Interests are available to such holders, and (iii) the
Company shall be deemed to have received all of the consideration
payable therefor, if any, as of the date of actual issuance of such
Convertible Securities. No adjustment of the Conversion Price shall be
made under this Section 11.4(e) upon the issuance of any Convertible
Securities which are issued pursuant to the exercise of any warrants or
other subscription or purchase rights therefor, if any such adjustment
shall previously have been made upon the issuance of such warrants or
other rights pursuant to Section 11.4(d). No further adjustments of the
Conversion Price shall be made upon the actual issue of such
Partnership Interests upon conversion or exchange of such Convertible
Securities and, if any issue or sale of such Convertible Securities is
made upon exercise of any warrant or other right to subscribe for or to
purchase any such Convertible Securities for which adjustments of the
Conversion Price have been or are to be made pursuant to other
provisions of this Section 11.4, no further adjustments of the
Conversion Price shall be made by reason of such issue or sale. For the
purposes of this Section 11.4(e), the date as of which the Current
Market Price of Partnership Interests shall be computed shall be the
earlier of (x) the date on which the Company shall enter into a firm
contract for the issuance of such Convertible Securities or (y) the
date of actual issuance of such Convertible Securities. Such
adjustments shall be made upon each issuance or amendment of
Convertible Securities and shall become effective immediately after
such issuance or amendment.
(f) Superseding Adjustment. If, at any time after any adjustment to
the Conversion Price shall have been made pursuant to Section 11.4(d) or 11.4(e)
above as the result of any issuance of warrants, rights or Convertible
Securities, and either
(i) such warrants or rights, or the right of
conversion or exchange of any other Convertible Securities,
shall expire, and all or a portion of such warrants or rights,
or the right of conversion or exchange with respect to all or
a portion of such other Convertible Securities, as the case
may be, shall not have been exercised; or
(ii) the consideration per Partnership Interest for
which Partnership Interests are issuable pursuant to such
warrants or rights, or the terms of such other Convertible
Securities, shall be increased solely by virtue of provisions
therein contained for an automatic increase in such
consideration per Partnership Interest upon the occurrence of
a specified date or event;
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then such previous adjustment shall be rescinded and annulled
and the Additional Partnership Interests which were deemed to
have been issued by virtue of the computation made in
connection with the adjustment so rescinded and annulled shall
no longer be deemed to have been issued by virtue of such
computation. Thereupon, a re-computation shall be made of the
effect of such rights or options or other Convertible
Securities on the Conversion Price on the basis of
(iii) treating the number of Additional Partnership
Interests or other property, if any, theretofore actually
issued or issuable pursuant to the previous exercise of any
such warrants or rights or any such right of conversion or
exchange, as having been issued on the date or dates of any
such exercise and for the consideration actually received and
receivable therefor (including all amounts received in respect
of the issuance or continuance of the validity of such
warrants or rights or any such right of conversion or
exchange); and
(iv) treating any such warrants or rights or any such
other Convertible Securities which then remain outstanding as
having been granted or issued immediately after the time of
such increase of the consideration per Partnership Interest
for which Partnership Interests are issuable under such
warrants or rights or other Convertible Securities.
(g) When Adjustments To Be Made. No adjustment in the Conversion Price
shall be required by this Section 11.4 if such adjustment either by itself or
with other adjustments not previously made would require an increase or decrease
of less than 1% in such price. Any adjustment representing a change of less than
such minimum amount which is postponed shall be carried forward and made as soon
as such adjustment, together with other adjustments required by this Section
11.4 and not previously made, would result in a minimum adjustment.
Notwithstanding the foregoing, any adjustment carried forward shall be made no
later than ten Business Days prior to the earlier of the Stated Maturity Date
and any Redemption Date. All calculations under this Section 11.4(g) shall be
made to the nearest cent. For the purpose of any adjustment, any specified event
shall be deemed to have occurred at the close of business on the date of its
occurrence.
(h) When Adjustments Not Required. If the Company shall fix a record
date for the purpose of determining the holders of Class A Interests entitled to
receive a distribution and shall, thereafter and before the distribution to such
holders thereof, legally abandon its plan to pay or deliver such distribution,
then thereafter no adjustment shall be required by reason of the taking of such
record and any such adjustment previously made in respect thereof shall be
rescinded and annulled.
(i) Other Action Affecting Class A Interests. In case after the date
hereof the Company shall take any action affecting Class A Interests other than
an action described in this Section 11.4, and the failure to make any adjustment
would not fairly protect the conversion rights contemplated hereby in accordance
with the
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essential intent and principle of this Section 11.4, then the
Conversion Price shall be adjusted in such manner and at such time as
shall be equitable in the circumstances.
SECTION 11.5. Notice of Adjustments of Conversion Price. Whenever the
Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Price in
accordance with Section 11.4 and shall prepare a CP Certificate setting
forth the adjusted conversion price and showing in reasonable detail
the facts upon which such adjustment is based, and such certificate
shall forthwith be filed at each office or agency maintained for the
purpose of conversion of Notes; and
(b) such CP Certificate and a notice stating that the
Conversion Price has been adjusted and setting forth the adjusted
Conversion Price shall, as soon as practicable, be mailed by the
Company to all Holders at their last addresses as they appear in the
Register.
SECTION 11.6. Notice of Certain Partnership Action. In case:
(a) the Company shall declare any distribution on its Class A
Interests (including cash but excluding normal cash distributions
(other than the first cash distribution paid by the Company) permitted
under applicable law so long as in each case such cash is payable
solely out of earnings or undistributed income of the Company); or
(b) the Company shall authorize the granting to holders of its
Class A Interests of rights to subscribe for or to purchase any Equity
Interests; or
(c) of any reclassification of the Class A Interests of the
Company, or of any consolidation or merger to which the Company is a
party, or the sale or transfer of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee and at each office or
agency maintained for the purpose of conversion of Notes, and shall cause to be
mailed to all Holders at their last addresses as they shall appear in the
Register, at least 20 days (or 10 days in any case specified in clause (a) or
(b) above) prior to the applicable record date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
distribution or rights or, if a record is not to be taken, the date as of which
the holders of Partnership Interests of record to be entitled to such
distribution or rights are to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Class A Interests of record shall be
entitled to exchange their Class A Interests for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up.
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Failure to give the notice requested by this Section or any defect therein shall
not affect the legality or validity of any distribution, right,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up, or the vote upon any such action.
SECTION 11.7. Issuance of Class A Interests. The Company covenants
that all Class A Interests which may be issued upon conversion of Notes will
upon issue be duly and validly issued and fully paid and nonassessable and,
except as provided in Section 11.8, the Company will pay all taxes, liens and
charges with respect to the issue thereof.
SECTION 11.8. Taxes on Conversions. The Company will pay any and all
taxes (other than withholding taxes referred to in the penultimate paragraph of
Section 11.2 and taxes based on the income of the Holder of the Note or Notes
being converted or of the Person in whose name the Class A Interests issued and
delivered on such conversion are issued) that may be payable in respect of the
issue or delivery of Class A Interests on conversion of Notes pursuant hereto.
The Company shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of Class A
Interests in a name other than that of the Holder of the Note or Notes to be
converted, and no such issue or delivery shall be made unless and until the
person requesting such issue has paid to the Company the amount of any such tax,
or has established to the satisfaction of the Company that such tax has been
paid.
SECTION 11.9. Responsibility of Trustee. Neither the Trustee, subject
to the provisions of Section 7.1, nor any Conversion Agent shall at any time be
under any duty or responsibility to any Holder to determine whether any facts
exist which may require any adjustment of the Conversion Price, or with respect
to the nature or extent of any such adjustment when made, or with respect to the
method employed, or herein or in any supplemental indenture provided to be
employed, in making the same. Neither the Trustee nor any Conversion Agent makes
any representation or shall be accountable with respect to the validity or value
(or the kind or amount) of any Class A Interests, or of any other securities or
property, which may at any time be issued or delivered upon the conversion of
any Note. Neither the Trustee nor any Conversion Agent shall be responsible for
any failure of the Company to make any cash payment or to issue, transfer or
deliver any Class A Interests or stock certificates or other securities or
property upon the surrender of any Note for the purpose of conversion; and
neither the Trustee, subject to the provisions of Section 7.1, nor any
Conversion Agent shall be responsible for any failure of the Company to comply
with any of the covenants of the Company contained in this Article.
ARTICLE 12.
REPRESENTATIONS AND WARRANTIES
The Company hereby makes the following representations and warranties
for the benefit of the Trustee and the Holders in connection with the issuance
of the Notes hereunder. The following representations and warranties shall be
true as of the Effective Date.
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SECTION 12.1. Corporate/Partnership Status. Each of the Company, each
Significant Subsidiary of the Company and each Controlling Partner (a) is a duly
organized and validly existing corporation (in the case of the Controlling
Partners and Significant Subsidiaries of the Company that are corporations) or
partnership (in the case of the Company and Significant Subsidiaries of the
Company that are partnerships) in good standing under the laws of the
jurisdiction of its incorporation or formation, (b) has all requisite corporate
or partnership power and authority, as the case may be, to own its property and
assets and to transact the business in which it is engaged or presently proposes
to engage and (c) is duly qualified and authorized to do business and is in good
standing as a foreign corporation or foreign partnership, as the case may be, in
every jurisdiction where the failure to be so qualified would result in a
Material Adverse Effect.
SECTION 12.2. Corporate/Partnership Power and Authority. Each of the
Company and each Controlling Partner has all requisite corporate or partnership
power and authority, as the case may be, to execute, deliver and carry out the
terms and provisions of the Indenture and the Notes issued thereunder to which
it is a party and has taken all necessary corporate or partnership action, as
the case may be, to authorize the execution, delivery and performance by it of
the Indenture and the execution and the authentication by the Trustee of the
Notes. A Controlling Partner has duly executed and delivered the Indenture and
the Notes on behalf of the Company, and each of the Indenture and the Notes
constitutes the Company's legal, valid and binding obligation, enforceable in
accordance with its terms, except as enforceability may be limited by applicable
insolvency, bankruptcy or similar laws affecting creditors' rights generally, or
general principles of equity, whether such enforceability is considered in a
proceeding in equity or at law.
SECTION 12.3. No Violation. Neither the execution, delivery or
performance by the Company or any Controlling Partner of the Indenture and the
Notes, nor the compliance by any such Person with the terms and provisions
hereof and thereof, (a) will contravene any applicable provision of any law,
statute, rule, regulation, order, writ, injunction or decree of any court or
governmental instrumentality, other than any of the foregoing which would not
result in a Material Adverse Effect, or (b) will conflict with or result in any
breach of, or constitute a default under or result in breach of, any of the
terms, covenants, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of (or the obligation to create or impose)
any Lien upon any of the property or assets of the Company (or of any
Controlling Partner or any Subsidiary of the Company) pursuant to the terms of,
any indenture, mortgage, loan agreement, note, lease or other agreement,
document or instrument to which the Company, any Controlling Partner or any
Subsidiary of the Company is a party or by which any of them may be bound or to
which any of their respective properties may be subject, other than any of the
foregoing which would not result in a Material Adverse Effect, or (c) will, with
respect to the Company or any Controlling Partner or any Subsidiary of the
Company that is a partnership, violate any provisions of the partnership
agreement of such Person (or the partnership agreement of any partnership of
which such Person is a partner), or (d) will, with respect to any Controlling
Partner or any Significant Subsidiary of the Company that is a corporation,
violate any provision of its Certificate of Incorporation or By-Laws.
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SECTION 12.4. Class A Interests Issuable upon Conversion of Notes. The
Company has authorized the creation, and no payments are required to be made to
the Company in connection with the issuance, of Class A Interests upon
conversion of Notes.
SECTION 12.5. Governmental Approvals. No order, consent, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection with
(i) the execution, delivery and performance of the Indenture or the issuance of
the Notes or (ii) the legality, validity, binding effect or enforceability of
the Indenture or the Notes, except for those listed on Schedule II, each of
which has been duly obtained or completed.
SECTION 12.6. Investment Company Act; Public Utility Holding Company
Act. None of the Company, any Controlling Partner or any Subsidiary of the
Company is (x) an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended, (y) a "holding company" or a "subsidiary company" of a "holding
company" or an "affiliate" of either a "holding company" or a "subsidiary
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended, or (z) subject to any other federal or state law or regulation which
purports to restrict or regulate its ability to borrow money.
SECTION 12.7. Corporate/Partnership Structure; Capitalization.
Schedule III hereto sets forth, as of immediately following the effectiveness of
the transactions to be consummated on the Effective Date pursuant to the Plan, a
complete list of (a) all Affiliates of the Company or any Subsidiary of the
Company that are known to the Company to have any record or beneficial interest
in any of the Notes, (b) all Subsidiaries of the Company, (c) each holder of an
Equity Interest in the Company or in any Subsidiary of the Company and the
interest so held, (d) all Indebtedness secured by any Core Property and all
guarantees of such Indebtedness; and (e) all Subsidiary Owners with respect to
each Core Property, all persons having any Equity Interest in each Subsidiary
Owner with respect to each Core Property and, in each case, the amount of such
Equity Interest. A true and correct copy of the Partnership Agreement (as in
effect on the date hereof) has been delivered to the Trustee.
SECTION 12.8. No Default. None of the Company, any Controlling Partner
or any Subsidiary of the Company is in default in any material respect beyond
any applicable grace period under or with respect to any material agreement,
instrument or undertaking to which it is a party or by which it or any of its
property is bound in any respect, the existence of which default would result in
a Material Adverse Effect.
SECTION 12.9. Licenses, etc. The Company, the Controlling Partners and
the Subsidiaries of the Company have obtained and hold in full force and effect,
all material franchises, licenses, permits, certificates, authorizations,
qualifications, accreditation, easements, rights of way and other rights,
consents and approvals which are necessary for the operation of the Core
Properties and their respective businesses as presently conducted.
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SECTION 12.10. Compliance with Law. The Company, the Controlling
Partners and the Subsidiaries of the Company are in compliance with all laws,
rules, regulations, orders, judgments, writs and decrees, noncompliance with
which would result in a Material Adverse Effect.
SECTION 12.11. Capital Infusion. The Company has received from the
Co-Proponents or their Affiliates on the Effective Date an aggregate capital
contribution of $75 million in Cash.
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SIGNATURES
IN WITNESS WHEREOF, the undersigned , being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of the
date first above written.
WORLD FINANCIAL CENTER
PROPERTIES, L.P.
By: World Financial Properties, Inc.
its Managing General Partner
By:
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By:
Name:
Title:
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