December 6, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: JMB/245 Park Avenue Associates, Ltd.
Commission File No. 0-13545
Form 8-K
Gentlemen:
Transmitted, for the above-mentioned registrant, is the electronically
filed executed copy of registrant's current report on Form 8-K.
Thank you.
Very truly yours,
JMB/245 Park Avenue Associates, Ltd.
By: JMB Park Avenue, Inc.
Corporate General Partner
By: GAILEN J. HULL
---------------------------
Gailen J. Hull, Vice President
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 5(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 21, 1996
JMB/245 PARK AVENUE ASSOCIATES, LTD.
--------------------------------------
Illinois 0-13545 36-3265541
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(State of (Commission (IRS Employer
Organization) File Number) Identification No.)
900 North Michigan Avenue, Chicago, Illinois 60611
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(Address of principal executive offices, including zip code)
Registrant's telephone number, including area code: (312) 915-1960
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N/A
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(Former name or former address, if changed since last report)
JMB/245 PARK AVENUE ASSOCIATES, LTD.
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
(a) On November 21, 1996, as part of an Amended Plan of
Reorganization (the "Plan") as filed with, and confirmed by, the United
States Bankruptcy Court for the Southern District of New York (the
"Bankruptcy Court") and previously filed as Exhibit 10-H to the
Registrant's Form 10-Q for the quarter ended September 30, 1996, the
Registrant exchanged its general partner interest in a joint venture
partnership which owned the 46 story 245 Park Avenue building in New
York City for the general partner interest in the partnership described
below. Prior to the restructuring described below, such interest was
held through a joint venture with partners (the "O&Y partners") who were
affiliates of Olympia & York Development, Ltd. ("O&Y").
The restructuring was necessitated by the bankruptcy of each of the
O&Y partners and certain other O&Y affiliates (but not the joint
venture). In connection with the restructuring, the joint venture filed
for bankruptcy under Chapter 11 of the United States Bankruptcy Code in
April 1996 seeking approval of a plan of reorganization by its creditors
and the partners of the joint venture, including the Registrant and in
August 1996, the Plan was filed with the Bankruptcy Court. The Plan was
accepted by the various classes of claims and equity holders and
confirmed by the Bankruptcy Court on September 20, 1996.
The restructuring was completed and the Plan became effective on
November 21, 1996. As a result of the restructuring, the Registrant
owns (through a limited liability company of which the Registrant is a
99% managing member) a 5.619% general partner interest in a newly formed
partnership, World Financial Properties, L.P. ("WFP LP"). The managing
general partner of WFP LP is an entity affiliated with certain O&Y
creditors and the proponents of the Plan. WFP LP's principal assets are
majority and controlling interests in the following six office
buildings:
Property and Location Net Rentable Area
----------------------- -------------------
One World Financial Center 1,510,987 square feet
New York, New York
Two World Financial Center 2,581,228 square feet
New York, New York
Four World Financial Center 1,813,659 square feet
New York, New York
One Liberty Plaza 2,100,000 square feet
New York, New York
245 Park Avenue 1,617,779 square feet
New York, New York
53 State Street 1,120,162 square feet
Boston, Massachusetts
JMB/245 PARK AVENUE ASSOCIATES, LTD.
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS - CONTINUED
As part of the restructuring, the Registrant received certain
rights pursuant to a JMB transaction agreement, a copy of which is an
exhibit to this Form 8-K, together with the partnership agreement of WFP
LP. The limited liability company in which the Registrant is a 99%
managing member also has registration rights, in certain limited
circumstances, for the interest it holds in WFP LP.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
Exhibits:
10.1 Amended and Restated Agreement of Limited Partnership of
World Financial Properties, L.P., dated November 21, 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.
10.2 JMB Transaction Agreement, dated November 21, 1996, by and
among World Financial Properties, L.P., World Financial
Properties, Inc., JMB/245 Park Avenue Associates, Ltd., JMB/245 Park
Avenue Holding Company, LLC, Battery Park Holdings, Inc., Emerald LP
Holdings, Inc., Canadian Imperial Bank of Commerce, and WFP Holdings
Limited Partnership.
10.3 Limited Liability Company Agreement of JMB/245 Park Avenue
Holding Company, LLC, dated as of November 12, 1996.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
JMB/245 PARK AVENUE ASSOCIATES, LTD.
By: JMB Park Avenue, Inc.
Corporate General Partner
By: GAILEN J. HULL
Gailen J. Hull, Vice President
Date: December 6, 1996
EXHIBIT INDEX
Exhibit Description Page
- ------- -------------------- ------
10.1 Amended and Restated Agreement of 7-74
Limited Partnership of World
Financial Properties, L.P.,
dated November 21, 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.
10.2 JMB Transaction Agreement, dated 75-107
November 21, 1996, by and among
World Financial Properties, L.P.,
World Financial Properties, Inc.,
JMB/245 Park Avenue Associates, Ltd.,
JMB/245 Park Avenue Holding Company,
LLC, Battery Park Holdings, Inc.,
Emerald LP Holdings, Inc., Canadian
Imperial Bank of Commerce, and WFP
Holdings Limited Partnership.
10.3 Limited Liability Company Agreement 108-132
of JMB/245 Park Avenue Holding
Company, LLC, dated as of
November 12, 1996.
AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP
of
WORLD FINANCIAL PROPERTIES, L.P.
Dated as of November 21, 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 ...................................... 15
2.02 Filing; Publication ............................... 16
2.03 Name .............................................. 16
2.04 Place of Business; Registered Agent ............... 16
2.05 Partners .......................................... 16
2.06 Implementing Transactions.......................... 16
ARTICLE 3 - BUSINESS PURPOSE
3.01 Character of Business ............................. 16
3.02 Authorized Activities ............................. 17
ARTICLE 4 - CAPITAL CONTRIBUTIONS
4.01 Initial Contributions ............................. 17
4.02 Additional Contributions .......................... 17
4.03 Rights of Holders of Class B Units;
Cancellation by Managing General
Partner ........................................ 20
4.04 Partners' Accounts ................................ 21
4.05 Transfers or Conversions During Year .............. 21
ARTICLE 5 - CONVERSION RIGHTS
5.01 Class B-1 Unit Conversion ......................... 22
5.02 Class B-2 Unit Conversion ......................... 23
5.03 Additional Conversion Adjustments ................. 24
5.04 Net SF Cash and Net MCJV Proceeds ................. 25
5.05 Convertible Note Documents ........................ 25
5.06 Transfers Pursuant to JMB Agreement ............... 26
ARTICLE 6 - PROFITS, LOSSES AND DISTRIBUTIONS
6.01 Profits and Losses ................................ 26
6.02 Allocations for Tax Purposes ...................... 26
6.03 Distributions ..................................... 27
-i-<PAGE>
ARTICLE 7 - MANAGEMENT AND FINANCING MATTERS
7.01 Management of Business ............................ 28
7.02 No Management by Limited Partners;
Limitation of Liability ........................ 30
7.03 Appointment of Agents, Officers or
Representatives ................................ 31
7.04 Title to Property; Nominee ........................ 31
7.05 Time Devoted to Business; Business with
Related Persons ................................ 31
7.06 Fiduciary Duty; Exculpation ....................... 32
7.07 Indemnification ................................... 33
7.08 Book and Records at Principal Place of
Business ....................................... 33
7.09 Annual Audit and Accounting ....................... 34
7.10 Reports; Notices .................................. 35
7.11 Tax Matters ....................................... 36
7.12 Withholding of Certain Amounts .................... 38
ARTICLE 8 - COMPENSATION
8.01 No Entitlement to Compensation .................... 39
8.02 Reimbursement ..................................... 39
ARTICLE 9 - TRANSFERS
9.01 Certain Transfers Void ............................ 40
9.02 Certain Prohibitions on Transfers ................. 40
9.03 Transfer by Certain Partners ...................... 40
9.04 Approval of Managing General Partner .............. 41
9.05 Certain Prohibited Transfers ...................... 42
9.06 Successor Managing General Partner; Removal
of Managing General Partner .................... 43
9.07 Successor Partners ................................ 45
9.08 Tag-Along Provisions .............................. 45
9.09 Transfers Must Comply with Laws ................... 49
9.10 Assumption by Transferee .......................... 49
9.11 Remedies for Impermissible Transfer ............... 49
9.12 Certificates ...................................... 49
9.13 Mutilated, Destroyed, Lost or Stolen Unit
Certificates ................................... 49
9.14 Record Holders .................................... 50
9.15 Registration of Transfer of Class A
Units........................................... 51
ARTICLE 10 - DISSOLUTION AND TERMINATION
-ii-
<PAGE>
10.01 Events of Dissolution ............................. 52
10.02 Continuance of the Partnership .................... 53
10.03 Liquidation of Partnership Assets ................. 53
10.04 Time for Winding-Up ............................... 55
ARTICLE 11 - GENERAL PROVISIONS
11.01 Entire Agreement; Amendments and Waivers .......... 55
11.02 Appointment of Attorney or Agent .................. 57
11.03 Construction ...................................... 58
11.04 Governing Law ..................................... 58
11.05 Further Assurances ................................ 58
11.06 Titles and Captions ............................... 58
11.07 Binding Agreement ................................. 58
11.08 Waiver of Participation; Appraisal
Rights ......................................... 59
11.09 Counterparts and Effectiveness .................... 59
11.10 Waiver of Trial by Jury ........................... 59
11.11 Notices ........................................... 59
Signatures .................................................... 60
SCHEDULE I Partners and Units
EXHIBIT A Form of Unit Certificate
EXHIBIT B Form of Transfer Application
EXHIBIT C Schedule 18 to the Plan
-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 21, 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>
ARTICLE 1 - DEFINITIONS
As used herein, the following terms have the meanings
assigned to them in this Article:
Act: The Delaware Revised Uniform Limited
Partnership 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
neither the Class A Units nor the Convertible Notes shall
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 Tag-Along Notice (as defined in the
Convertible Note Indenture) in respect of such Tag-Along
Sale.
<PAGE>
Affiliate: With reference to any Person, any other
Person that "Controls," is "Controlled by" or is under
"common Control with" such Person.
Approved Agreements: Those agreements and
transactions described on Schedule IV to the Convertible
Note Indenture.
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>
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
Sunday 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
(i) any such change, shift or transfer of Control of the
Ultimate Control Person in respect of such Partner and/or
(ii) in the case of Dragon Partner, any change, shift or
transfer of Control of any Person within, or from one Person
or Persons to another Person or Persons within, the Dragon
Control Group.
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
<PAGE>
capital stock of Florida Equity Corp. equal to one
thousandth of one percent of all such interest and rights.
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
exercise the Conversion Right.
Conversion Right: The right to convert the
indebtedness 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
Convertible 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
<PAGE>
resolution of the claims alleged in a suit captioned In re
Holywell 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
Recovery 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):
(i) 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, (ii) any trust or trusts
substantially all of the beneficiaries of which consist of
one or more Persons described in clause (i) above, 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 such Person or Persons,
and (iii) any one or more Persons that are Controlled by any
Person or group of Persons referred to in clause (i) or
clause (ii) above.
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
Managing General Partner, (ii) each Additional General
Partner 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
<PAGE>
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.: Olympia & York 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 all or
any part 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 all or any part 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 all or
any part 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, 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 all or any part of
its direct or indirect Interest after which Citibank Partner
and its Affiliates shall own beneficially or of record a
<PAGE>
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 (and all the Class A
Units owned by any other Founding Limited Partners and their
Affiliates included in such Qualified Public Offering
(except for those of any such other Founding Limited Partner
and its Affiliates initiating such Qualified Public
Offering) and all Class A Units issued by the Partnership in
such Qualified Public Offering (except for those to be sold
by the Partnership if it is initiating such Qualified Public
Offering), 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 Exhibit C hereto.
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 the product of .001%
and the Partnership Reorganization Value.
Interest: As to each Partner, such Partner's rights to
participate in the income, gains, losses, deductions and
<PAGE>
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) (a) Controlled
by the JMB Control Person and (b) in which the JMB Control
Person owns directly or indirectly more than 50% of all
capital and profits interests or (ii) that is wholly owned
by any one or more of the following: (a) a Person that on
the date hereof is a shareholder or director of the JMB
Control Person or a spouse, child or grandchild of such a
Person or (b) any partnership or trust, the partners or
beneficiaries of which are solely Persons described in
clause (i) or (ii) above.
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>
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
Properties, 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: The amount
identified as such on Schedule I to this agreement.
Person: A natural person or a corporation,
partnership, limited liability company, joint venture,
trust, unincorporated association 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.
Post Effective Date Implementing Transactions: Those
Implementing Transactions that occur after the date hereof
that do not violate the provisions of Section 4.8 of the
Convertible Note Indenture (as in effect on the date
hereof).
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.<PAGE>
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 November 15, 1996 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 no less than 35,000 Class A Units,
but not more than the number of Class A Units that represent
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
Persons: (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
Equity Interests aggregate not less than 80% of the
aggregate Equity Interest of all Persons (other than
<PAGE>
Citibank Partner) 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.
Selling Group: With respect to any transaction for the
assignment of Class A Units, any Partner, together with all
its Affiliates, if any, participating in such transaction
and all other Partners and their Affiliates, if any,
participating in such transaction pursuant to any option or
"tag-along" or "drag-along" agreement.
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).
Tag-Along Seller: As defined in Section 9.08.
<PAGE>
Tax Advance: As defined in the Plan (as in effect on
the date hereof).
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 or any
member thereof 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
<PAGE>
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 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>
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 Delaware 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
General Partner is authorized to and shall cause the
Partnership and Persons Controlled by it to take all actions
necessary or desirable in the judgment of the Managing General
<PAGE>
Partner to consummate or give effect to 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.
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
<PAGE>
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 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
<PAGE>
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,
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
<PAGE>
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;
Cancellation 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
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
<PAGE>
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
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
<PAGE>
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
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
<PAGE>
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 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
<PAGE>
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
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
<PAGE>
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.
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. Each Partner that may hereafter become a
Tag-Along Seller shall, upon request to do so by the Managing
General Partner, comply with those provisions of Section 4.19
of the Convertible Note Indenture (as in effect on the date
hereof) that are applicable to a Tag-Along Seller to the extent
necessary to cause the Partnership to fulfill its obligations
under such Section in respect of any Tag-Along Sale.
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.
<PAGE>
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 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
<PAGE>
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).
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 Partner's reasonable judgment, any such reserve
<PAGE>
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. 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
<PAGE>
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
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.
<PAGE>
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
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
<PAGE>
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
Partnership's business.
(b) The Managing General Partner, in its discretion,
may cause the Partnership or any Person Controlled by the
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 the Approved Agreements and those
Implementing Transactions that are fully consummated on the
date hereof and any Post Effective Date 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
<PAGE>
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) 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
Delaware 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 General 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
<PAGE>
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 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
<PAGE>
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 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 seventy (70) 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 eighty-five (85) 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
<PAGE>
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 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 under the Securities Exchange Act
of 1934, as amended, 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
Partnership'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.
<PAGE>
(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,
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
<PAGE>
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 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
<PAGE>
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
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.
<PAGE>
8.02 Reimbursement. The Partnership shall reimburse
each General Partner for all reasonable and customary out-of-
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.
<PAGE>
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, in respect of such Unrestricted
Units, 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 in the case of any request for
consent under this Section 9.04 relating to a transaction for
the assignment by a Selling Group that includes the Managing
General Partner or an Affiliate thereof of more than 50% of the
aggregate Equity Interests in the Partnership, no assignee
(other than any assignee of Unrestricted Units) of any member
of such Selling Group 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
<PAGE>
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 Olympia & York
Developments Limited, et al. filed under the Companies'
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, (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
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
<PAGE>
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, except as provided in
subsection 9.08(e), 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
admission of its successor Managing General Partner. The
Managing 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.
<PAGE>
(b) A successor to all of the Managing General
Partner'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.
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.
<PAGE>
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 (A) 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) is at least 4% or (B) if
less than 4%, such Equity Interest has fallen below 4% 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
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
<PAGE>
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, (v) the name
and address of each Tag-Along Seller, (vi) the number of
Class A Units outstanding as of the close of business on the
day immediately preceding the Tag-Along Notice Date and
(vii) the number of Class A Units issuable upon conversion of
all outstanding Convertible Notes (exclusive of accrued
interest thereon) as of the close of business on the day
immediately preceding the Tag-Along Notice Date. Upon request
of any Tag-Along Seller, the Managing General Partner shall
provide to such Tag-Along Seller the information contemplated
in clauses (vi) and (vii) above.
(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 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-
<PAGE>
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 at least five (5) Business
Days prior to the Tag Along Sale Date, 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 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.
<PAGE>
(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 sale of any Class A Units to be sold as part of a
Tag-Along Sale is deferred and the Tag-Along Sellers and the
Tag-Along Purchaser in respect of such Tag-Along Sale agree to
consummate such Tag-Along Sale in stages, then each Tag-Along
Partner participating in such Tag-Along Sale shall be entitled
to sell 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
Tag-Along Sellers sell any of their 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 all or any part of its
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 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.
<PAGE>
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
substance satisfactory to the Managing General Partner,
that 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
<PAGE>
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 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 or holdings or
similar terms.
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
<PAGE>
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
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.
<PAGE>
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
business 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
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. Notwith-
standing 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)
<PAGE>
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
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
<PAGE>
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 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
<PAGE>
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 (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,
<PAGE>
(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,
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 set forth in a
writing signed by such Partner.
11.02 Appointment of Attorney or Agent.
<PAGE>
(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
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.
<PAGE>
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.
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 and delivery of
this agreement by facsimile shall be valid and binding for all
purposes.
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>
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:
By:
Name:
Title:<PAGE>
WFP HOLDINGS LIMITED PARTNERSHIP
By: WFP CORP., 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; Reorganization Value
Class A Class B-1 Class
B-2
I. 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] _____ _____ _____
<PAGE>
II. Reorganization Value
The Partnership Reorganization Value is $_________.
___________________
* Asterisks indicate Persons that are Excluded Class B
Partners.
<PAGE>
EXHIBIT A
[Form of Unit Certificate]
<PAGE>
EXHIBIT B
[Form of Transfer Application]
<PAGE>
EXHIBIT C
[Amended Form of Schedule 18 to the Plan]
<PAGE>
SCHEDULE I
Partners and Units; Reorganization Value
Class A Units Class B-1 Units Class B-2 Units
I. Partners
General Partners
WORLD FINANCIAL
PROPERTIES, INC. 1,000.00 100.0000 100.0000
JMB 245 PARK AVENUE
HOLDING COMPANY, LLC 5,619.00 0 0
Limited Partners
BATTERY PARK
HOLDINGS INC. 36,309.80 3,604.4522 3,604.4522
OLYMPIA & YORK
TOWER B COMPANY 8,026.00 796.7362 796.7362
CANADIAN IMPERIAL
BANK OF COMMERCE 20,589.55 2,043.9124 2,043.9124
WFP HOLDINGS LIMITED
PARTNERSHIP 3,431.63 340.6559 340.6559
EMERALD LP HOLDINGS,
INC. 22,391.02 2,222.7433 2,222.7433
415 LEXINGTON AVENUE
ASSOCIATES 14.00 0 0
AMERICAN EXPRESS
COMPANY 18.00 0 0
BANCO DIROMA 44.00 0 0
THE CHASE MANHATTAN
BANK 15.00 0 0
THE CHASE MANHATTAN
BANK 24.00 0 0
MICHAEL DENNIS 12.00 0 0
THE FIRST NATIONAL
BANK OF CHICAGO 9.00 0 0
CREDIT AGRICOLE 19.00 0 0
BANCO DIROMA 9.00 0 0
THE CHUO TRUST &
BANKING CO., LTD. 9.00 0 0
CITY OF HARTFORD 35.00 0 0
GEORGE IACOBESCU 2.00 0 0
JMB/125 BROAD BUILDING
ASSOCIATES, L.P. 22.00 0 0
VINAY KAPOOR 1.00 0 0
MERRILL LYNCH/WFC/L,
INC. 392.00 0 0
<PAGE>
OLYMPIA & YORK DEVELOPMENTS
LIMITED 212.00 0 0
OPPENHEIMER FINANCIAL
CORPORATION 255.00 0 0
OPPENHEIMER & CO.,
INC. 5.00 0 0
PARK-LEXINGTON COMPANY,
INC. 13.00 0 0
JUDITH POEHLER 2.00 0 0
SWISS BANK CORPORATION,
NEW YORK BRANCH 91.00 0 0
TEACHERS INSURANCE AND
ANNUITY
ASSOCIATION OF
AMERICA 318.00 0 0
VARLOTTA CONSTRUCTION
CORP. 1.00 0 0
WESTDEUTSCHE LANDESBANK
GIROZENTRALE 4.00 0 0
WORLD FINANCIAL PROPERTIES, L.P.,
AS DISBURSING AGENT 942.00 0 0
WORLD FINANCIAL PROPERTIES,
L.P., AS DISBURSING AGENT
165.00 891.5000 891.5000
II. Reorganization Value
The Partnership Reorganization Value is $539,284,043.00.
__________
* Asterisks indicate Persons that are excluded Class B Partners.
Footnote continued from previous page.
Footnote continued on next page.
- -2-
<PAGE>
Exhibit A to the Amended and Restated Agreement of Limited
Partnership of World Financial Properties, L.P.
Unit Certificate Evidencing Class A Units Representing Partnership
Interests in World Financial Properties, L.P.
No. Class A Units (Unrestricted Units/Not Unrestricted Units)
In accordance with Section 9.12 of the Amended and Restated
Agreement of Limited Partnership of World Financial Properties,
L.P., as amended, supplemented or restated from time to time (the
"Partnership Agreement"), World Financial Properties, L.P., a
Delaware limited partnership (the "Partnership"), hereby certifies
that (the "Holder") is the registered owner of Class A Units
representing partnership interests in the Partnership (the "Class
A Units") transferable on the books of the Partnership, in person
or by duly authorized attorney, upon compliance with all applicable
provisions of Article 9 of the Partnership Agreement and
surrender of this Unit Certificate properly endorsed and
accompanied by a properly executed application for transfer of the
Class A Units represented by this Unit Certificate. The rights and
limitations of the Class A Units are set forth in, and this Unit
Certificate and the Class A Units represented hereby are issued and
shall in all respects be subject to the terms and provisions of,
the Partnership Agreement. If so indicated above, the Class A
Units represented hereby are "Unrestricted Units." Copies of the
Partnership Agreement are on file at, and will be furnished without
charge on delivery of written request to the Partnership at, the
principal office of the Partnership located at One Liberty Plaza,
New York, New York 10006. Capitalized terms used herein but not
defined have the meaning given them in the Partnership Agreement.
The Class A Units represented by this Unit Certificate are subject
to the transfer restrictions set forth in Article 9 of the
Partnership Agreement. No purported transfer of such Class A Units
shall be effective for any purpose unless such transfer is effected
in compliance with the provisions of Article 9 of the Partnership
Agreement.
This Unit Certificate shall not be valid for any purpose unless it
has been countersigned and registered by the Transfer Agent.
Dated:________________________ World Financial Properties,L.P.
By: World Financial Properties,
Inc., its managing general
partner
Countersigned by:
World Financial Properties, Inc.,
By:_________________________
as Transfer Agent President
By:_________________________ By: ________________________
Authorized Signature Secretary
<PAGE>
[Reverse of Unit Certificate]
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Unit Certificate, shall be construed as follows
according to applicable laws or regulations:
TEN COM- as tenants in common UNIF GIFT MIN ACT-
TEN ENT- as tenants by
the entireties ________Custodian___________
JT TEN- as joint tenants with right of (Cust)
survivorship and not as tenants B to (Minor)
in common Act ______________________
State
Additional abbreviations, though not in the above list, may also be
used.
ASSIGNMENT OF CLASS A UNITS
in
WORLD FINANCIAL PROPERTIES, L.P.
FOR VALUED RECEIVED, _________________________________ hereby
assigns, conveys, sells and transfers unto
_________________________________________________________________
_________________________________________________________________
(Please print or typewrite name (Please insert Social
Security or other and address of Assignee)
identifying number of Assignee)
_____________________________________________ Class A Units
representing partner interests evidenced by this Unit Certificate,
subject to the Partnership Agreement, and does hereby irrevocably
constitute and appoint ________________________ as its
attorney-in-fact with full power of substitution to transfer the
same on the books of World Financial Properties, L.P.
Date:____________________________ NOTE: The signature to any
endorsement hereon must correspond with the name as written upon
the face of this Unit Certificate in every particular, without
alteration, enlargement or change.
SIGNATURE(S) MUST BE GUARANTEED
BY A MEMBER FIRM OF THE NATIONAL
ASSOCIATION OF SECURITIES DEALERS,
______________________________________
INC. OR BY A COMMERCIAL BANK OR (Signature)
TRUST COMPANY
______________________________________
(Signature)
SIGNATURE(S) GUARANTEED
No transfer of the Class A Units evidenced hereby will be
registered on the books of the Partnership, unless the Unit
Certificate evidencing the Class A Units to be transferred is<PAGE>
surrendered for registration of transfer and an Application for
Transfer of Class A Units has been executed by a transferee either
(a) on the form set forth below or (b) on a separate application
that the Partnership will furnish on request without charge. A
transferor of the Class A Units shall have no duty to the
transferee with respect to execution of the transfer application in
order for such transferee to obtain registration of the transfer of
the Class A Units.
_______________________________________
Exhibit B to the Amended and Restated Agreement of Limited
Partnership of World Financial Properties, L.P.
APPLICATION FOR TRANSFER OF CLASS A UNITS
The undersigned ("Assignee") hereby applies for transfer to the
name of the Assignee of the Class A Units (or portion of a Class A
Unit) evidenced hereby. Assignee acknowledges that it shall not be
a Partner unless and until this transfer is effected in accordance
with the provisions of Article 9 of the Amended and Restated
Agreement of Limited Partnership of World Financial Properties,
L.P. (the "Partnership"), as amended, supplemented or restated to
the date hereof (the "Partnership Agreement"), including, without
limitation, the requirement that any original Unit Certificates
evidencing Class A Units be surrendered to the Transfer Agent in
accordance with Section 9.15 of the Partnership Agreement.
Capitalized terms used herein have the meanings given thereto in
the Partnership Agreement.
The Assignee (i) requests admission to the Partnership as a
Limited Partner (unless its transferor is a General Partner, it has
elected in a separate writing submitted with this application to be
a General Partner and, pursuant to all applicable provisions of the
Partnership Agreement, it is entitled to admission as a General
Partner), (ii) agrees to be bound by the Partnership Agreement as
a Limited Partner or (if Assignee makes an election in clause (i)
above) General Partner having the same obligations under the
Partnership Agreement as are held by its transferor; provided,
however, that Assignee shall not be bound by any amendment to the
Partnership Agreement of the character described in the first
proviso to subsection 11.01(b) of the Partnership Agreement unless
such amendment was approved by its transferor, (iii) represents and
warrants that Assignee has the right, power and authority and, if
a natural Person, the capacity to enter into the Partnership
Agreement, and (iv) grants the powers of attorney set forth in
Section 11.02 of the Partnership Agreement.
Date:______________________________
Social Security or other Signature of Assignee
identifying number of
Assignee
Purchase Price including commissions, if any
Name and Address of Assignee<PAGE>
Partnership Status of Transferor (check one)
Managing General Partner
Additional General Partner
Limited Partner
Status of Units of Transferor (check one)
Unrestricted Units
Not Unrestricted Units
Type of Entity (check one):
Individual
Partnership
Corporation
Trust
Other (specify)
Nationality (check one)
U.S. Citizen, Resident or Domestic Entity
Foreign Corporation
Non-resident Alien
If the U.S. Citizen, Resident or Domestic Entity Box is checked,
the following certification must be completed.
Under Section 1445(e) of the Internal Revenue Code of 1986, as
amended (the "Code"), the Partnership must withhold tax with
respect to certain transfers of property if a holder of an interest
in the Partnership is a foreign person. To inform the Partnership
that no withholding is required with respect to the undersigned
interestholder's interest in it, the undersigned hereby certifies
the following (or, if applicable, certifies the following on behalf
of the interestholder).
<PAGE>
Complete Either A or B:
A. Individual Assignee
1. I am not a non-resident alien for purposes of U.S. income
taxation.
2. My U.S. taxpayer identification number (Social Security Number)
is_______________________________________________________________
3. My home address is
________________________________________________________
B. Partnership, Corporation or Other Assignee
1. _______________________________________________ is not a
foreign corporation, (Name of Assignee) foreign partnership,
foreign trust or foreign estate (as those terms are defined in the
Code and Treasury Regulations).
2. The Assignee's U.S. employer identification number is
______________________.
3. The Assignee's office address and place of incorporation (if
applicable) is
________________________________________________________________.
The Assignee agrees to notify the Partnership within sixty (60)
days of the date the interestholder becomes a foreign person.
The Assignee understands that this certificate may be disclosed to
the Internal Revenue Service by the Partnership and that any false
statement contained herein could be punishable by fine,
imprisonment or both.
Under penalties of perjury, I declare that I have examined this
certification and to the best of my knowledge and belief it is
true, correct and complete and, if applicable, I further declare
that I have authority to sign this document on behalf of
Name of Assignee
Signature and Date
Title (if applicable)
Note: If the Assignee is a broker, dealer, bank, trust company,
clearing corporation, other nominee holder or an agent of any of
the foregoing, and is holding for the account of any other person,
this application should be completed by an officer thereof or, in
the case of a broker or dealer, by a registered representative who
is a member of a registered national securities exchange or a
member of the National Association of Securities Dealers, Inc., or,
in the case of any other nominee holder, a person performing a
similar function. If the Assignee is a broker, dealer, bank, trust
company, clearing corporation, other nominee owner or an agent of
any of the foregoing, the above certification as to any person for
whom the Assignee will hold the Class A Units shall be made to the
best of the Assignee's knowledge.
JMB TRANSACTION AGREEMENT
JMB TRANSACTION AGREEMENT, dated as of November 21,
1996, by and among WORLD FINANCIAL PROPERTIES, L.P., a Delaware
limited partnership (together with its successors and assigns,
the "Partnership"), WORLD FINANCIAL PROPERTIES, INC., a
Delaware corporation and the managing general partner of the
Partnership (together with its successors and assigns, "GP
Corp."), JMB/245 PARK AVENUE ASSOCIATES, LTD., an Illinois
limited partnership (together with its successors and assigns,
"JMB"), JMB 245 PARK AVENUE HOLDING COMPANY, LLC, a Delaware
limited liability company (together with its successors and
assigns, "JMB Partner"), BATTERY PARK HOLDINGS, INC., a
Delaware corporation (together with its successors and assigns,
"BPHI"), EMERALD LP HOLDINGS, INC., a Delaware corporation
(together with its successors and assigns, "Citibank Partner"),
CANADIAN IMPERIAL BANK OF COMMERCE, a banking institution
organized under the laws of Canada (together with its
successors and assigns, "CIBC Partner") and WFP HOLDINGS
LIMITED PARTNERSHIP, a Delaware limited partnership (together
with its successors and assigns, "Dragon Partner").
R E C I T A L S :
A. In furtherance of the consummation of the
transactions contemplated in the Plan (as hereinafter defined),
the Partnership has been formed pursuant to that certain
amended and restated agreement of limited partnership, dated as
of the date hereof (the "WFP Partnership Agreement"), by and
among GP Corp., JMB Partner, BPHI, Olympia & York Tower B
Company (together with BPHI, "BPHI Partner"), CIBC Partner,
Citibank Partner, Dragon Partner and certain other Persons (as
hereinafter defined) identified therein, as limited partners.
B. In accordance with the provisions of the Plan,
JMB Partner has received and holds that number of Class A Units
(as hereinafter defined) as is contemplated in the Plan to be
issued to JMB Partner.
C. JMB is the managing member of JMB Partner and
Controls (as hereinafter defined) JMB Partner.
<PAGE>
D. The parties are executing and delivering this
agreement to provide certain rights to, and impose certain
obligations on, JMB Partner as contemplated in Sections 15.8.1
and 18.13 of the Plan, and to provide to the other parties
hereto, among other things, the right of first offer set forth
herein with respect to the Class A Units held by JMB Partner
and the releases and indemnities herein set forth.
A G R E E M E N T :
The parties agree as follows:
SECTION 1. Definitions. As used in this agreement,
each capitalized term not otherwise defined herein shall have
the meaning given such term in the WFP Partnership Agreement
(as in effect on the date hereof).
SECTION 2. Transfers of Class B Units. (a) Each
party to this agreement that is a Founding Limited Partner on
the date hereof shall assign to JMB Partner, effective
immediately preceding each conversion of any Class B Units to
Class A Units pursuant to Article 5 of the WFP Partnership
Agreement, its Ratable Percentage (as defined below),
determined as of the date hereof, of the JMB Unit Amount (as
defined below) in respect of such conversion. The
documentation to effect each such assignment shall be in form
reasonably acceptable to the transferring parties and to JMB
Partner. All Class B Units so assigned to JMB Partner shall be
free and clear of any claims or security interests of any
Person (and each instrument of assignment shall contain a
warranty to such effect by the applicable transferor parties).
(b) Each party to this agreement that is a Founding
Limited Partner on the date hereof agrees to retain and not
Transfer sufficient Class B Units (or make other arrangements
with respect thereto as shall be approved by JMB Partner in its
reasonable discretion) to enable such Founding Limited Partner
to perform, when due, its obligations under this Section 2;
provided, however, that no such approval of JMB Partner shall
be required if, upon any Transfer by a Founding Limited Partner
that otherwise would violate the provisions of this subsection
(b), the transferee of such Founding Limited Partner assumes
the obligations of its transferor pursuant to the provisions of
subsection 2(a) above.
(c) "Ratable Percentage" means, as to each Founding
Limited Partner, at any time, the quotient obtained by dividing
<PAGE>
(i) the number of Class A Units then owned by such Founding
Limited Partner by (ii) the total number of Class A Units then
owned by all Founding Limited Partners.
(d) "JMB Unit Amount" means, in respect of each
conversion of Class B Units to Class A Units pursuant to the
provisions of Article 5 of the WFP Partnership Agreement, that
number of Class B Units as is equal to the product of (i) the
total number of Class B Units so to be converted in such
conversion and (ii) a fraction the numerator of which is the
JMB Class A Unit Amount in respect of such conversion and the
denominator of which is the total number of Class A Units to be
issued in respect of such conversion.
(e) "JMB Class A Unit Amount" means, in respect of
each conversion of Class B Units to Class A Units pursuant to
the provisions of Article 5 of the WFP Partnership Agreement,
that number of Class A Units as is equal to the JMB Total Unit
Amount as of the date of such conversion reduced by the total
of the JMB Class A Unit Amounts in respect of all conversions
of Class B Units to Class A Units that occurred prior to such
conversion, if any.
(f) "JMB Total Unit Amount" means, in respect of
each conversion of Class B Units to Class A Units pursuant to
the provisions of Article 5 of the WFP Partnership Agreement,
the quotient obtained by dividing (A) the Initial Unit Value
into (B) the product of (x) 5.61534% and (y) positive
difference, if any, between (1) the sum of the amounts of Net
SF Cash and the Net MCJV Proceeds (to the extent each such
amount has been determined under Article 5 of the WFP
Partnership Agreement and, as of the date of such conversion,
realized by the Partnership) and (2) $11,653,000.
SECTION 3. Right of First Offer. (a) JMB shall not
cause or permit JMB Partner to, and JMB Partner shall not, make
or permit to occur any Transfer of any of its Class A Units or
make or respond to any offers to do so except in compliance
with the provisions of this Section 3.
(b) JMB and JMB Partner may make or permit to occur
any Transfer of all or any portion of the Class A Units issued
to JMB Partner to (i) any Person in connection with a
registered public offering made pursuant to the provisions of
the registration rights agreement, dated as of the date hereof,
relating to the Class A Units, (ii) any Wholly Owned Affiliate
of JMB or JMB Partner or any JMB Controlled Affiliate or (iii)
its constituent members (on a ratable basis); provided,
however, that no such Transfer shall be consummated (A) except
in compliance with all applicable provisions of Article 9 of
<PAGE>
the WFP Partnership Agreement and (B) in the case of such a
Transfer by JMB Partner described in clauses (ii) or (iii)
above, unless such Wholly Owned Affiliate, JMB Controlled
Affiliate or each such member (other than any member Controlled
by the Partnership) shall have executed and delivered to each
of the parties to this agreement (other than JMB or JMB
Partner) a written instrument pursuant to which such Wholly
Owned Affiliate, JMB Controlled Affiliate or member assumes (in
respect of the Class A Units Transferred to it) all the
obligations of JMB Partner under this Section 3 and Section 10
of this agreement. In addition, if JMB Partner shall have made
a Transfer of Class A Units of the character described in
clause (iii) above to JMB in compliance with all applicable
provisions of this agreement and Article 9 of the WFP
Partnership Agreement, JMB may Transfer all or part of such
Class A Units to its constituent partners (on a ratable basis
and without requiring such Partners to deliver the instrument
described in clause (B) above); provided, however, that any
such Transfer shall be made only in compliance with all
applicable provisions of Article 9 of the WFP Partnership
Agreement.
(c) If JMB Partner shall determine to offer to make
any Transfer (other than a Transfer by JMB or JMB Partner of
the character described in subsection 3(b) above) of any
Class A Units or to respond to any offer received by it with
respect thereto, it shall first give each of the Founding
Limited Partners a notice (an "Offer Notice") specifying
(i) the number of Class A Units it desires to Transfer,
(ii) the date (which shall be at least thirty-one (31) days
after the date of the Offer Notice) on which such Transfer is
contemplated to occur, (iii) the purchase price per Class A
Unit (the "Unit Price") that JMB Partner is willing to accept
for Transfer of such Class A Units and (iv) if JMB Partner is
willing to provide any purchase money financing in respect of
such Transfer, the terms thereof that would be acceptable to
JMB Partner. Each Founding Limited Partner shall have the
right (the "First Offer Right"), exercisable by written notice
(each, an "Exercise Notice") to JMB Partner (a copy of which
shall be provided concurrently to each other Founding Limited
Partner) given not later than fifteen (15) days after the
effective date under Section 19 hereof of the Offer Notice, to
purchase from JMB Partner its Ratable Percentage of the Class A
Units identified in the Offer Notice for the Unit Price set
forth in the Offer Notice; provided, however, that if any
Founding Limited Partner shall fail or decline to exercise the
First Offer Right for its full Ratable Percentage of the
Class A Units identified in the Offer Notice, the First Offer
Right in respect of the portion thereof not so exercised may be
exercised by the other Founding Limited Partners (on a ratable
<PAGE>
basis or such other basis as they shall agree) by the sending
of an additional Exercise Notice to JMB Partner within thirty
(30) days after the effective date under Section 19 hereof of
the Offer Notice as against all Founding Limited Partners.
(d) If the Founding Limited Partners shall not have
given Exercise Notices in respect of all of the Class A Units
identified in the Offer Notice within such thirty (30) day
period, JMB Partner shall thereafter have the right to Transfer
all such Class A Units to any Person for cash or on the
financing terms, if any, specified in the Offer Notice, at a
purchase price per Class A Unit of not less than 95% of the
Unit Price set forth in the Offer Notice, provided such sale
shall be consummated not later than one hundred twenty (120)
days following the effective date under Section 19 hereof of
the Offer Notice as against all Founding Limited Partners.
(e) The closing of any Transfer to the Founding
Limited Partners pursuant to the provisions of this Section 3
shall take place at the office of JMB Partner in Chicago,
Illinois, or such other place in Chicago, Illinois, or New York
City as shall be designated by JMB Partner on a date not later
than the date set forth in the Offer Notice as the anticipated
closing date. At such closing, JMB Partner shall deliver or
cause to be delivered to each of the applicable purchasers,
against receipt (by delivery of immediately available funds) of
the purchase price owing to JMB Partner hereunder, an
instrument in form reasonably acceptable to such purchaser
assigning to such purchaser all JMB Partner's rights in and to
the Class A Units specified in the Exercise Notice or Exercise
Notices of such purchaser. Any and all transfer or similar
taxes in respect of such transfer shall be paid by JMB Partner.
All Class A Units so transferred by JMB Partner shall be free
and clear of any claims or security interests of any Person
(and the instrument of assignment shall contain a warranty to
such effect by JMB Partner).
(f) Notwithstanding anything to the contrary herein
contained, no term or provision of this Section 3 that may be
or become inconsistent with the provisions of Section 9-1.1 of
the Estates, Powers and Trusts Law of the State of New York, or
any successor statute thereto in effect during the term of this
agreement, shall be operative following twenty-one years after
the death of the last to die of those descendants of John D.
Rockefeller, Sr., in being on the date of this agreement.
SECTION 4. Restriction on Sale of the 245 Park
Property. (a) Without the written consent of JMB Partner
(which may be withheld in JMB Partner's sole discretion), the
Partnership shall not cause or permit the sale or other similar
<PAGE>
conveyance of 245 Park Avenue prior to January 2, 2000;
provided, however, that no such consent shall be required for
any such sale or conveyance (i) pursuant to the foreclosure of
any indebtedness or other obligations secured by 245 Park
Avenue, (ii) resulting from any condemnation or failure to
restore 245 Park Avenue following a casualty loss thereat or
other involuntary act or transfer, (iii) that is involuntary in
nature, whether similar or dissimilar to the matters specified
in clause (i) or (ii) above, or (iv) if the Partnership shall
have received the written opinion of an independent investment
bank of national reputation that such a sale or conveyance is
the most appropriate business strategy for the Partnership to
pursue to raise funds in an amount sufficient (but not greater
than the amount necessary) to avoid an imminent default or cure
an existing default on any indebtedness secured by a Core
Property or other material asset of the Partnership or a Person
Controlled by it. Within three (3) days after the passage of
any resolution of the Board of Directors of GP Corp. or other
official determination of the Partnership to exercise its
rights under the provisions of clause (iv) of this
subsection 4(a), the Partnership shall give a written notice to
JMB setting forth in reasonable detail a description of the
facts relating to the applicable default or imminent default
and the identity of the investment bank selected by the
Partnership to advise it in connection therewith; provided,
however, that no such sale or conveyance of 245 Park Avenue
pursuant to the provisions of such clause (iv) may be
consummated prior to the date that is ten (10) days after the
date of such written notice to JMB. JMB shall keep
confidential all information provided to it under the
provisions of this subsection and shall not disclose any such
information to any Person except as may be required by
applicable law or to enforce its rights under this agreement.
(b) The provisions of subsection (a) of this
Section 4 shall terminate and be of no further force or effect
upon the earlier of (i) the transfer by JMB of at least 95% of
its interest in JMB Partner or by JMB Partner of its Class A
Units resulting in a direct or indirect beneficial ownership by
JMB and all JMB Controlled Affiliates of a number of Class A
Units representing less than 5% of the total number of Class A
Units issued to JMB Partner on the date hereof (any such
Transfer, a "Disqualifying Transfer") and (ii) such time as the
Partnership shall have received, in connection with any
proposed offering or placement of equity securities of the
Partnership providing for a gross sales price of not less than
$100,000,000, a written opinion of a financial advisor retained
by the Partnership to market such equity securities (and
approved or deemed approved by JMB Partner pursuant to
subsection (c) below) expressing its reasonable determination
<PAGE>
that the consent rights set forth in subsection (a) above would
result in a diminution in the gross amount of proceeds that
otherwise could reasonably be expected to be received in
respect of such offering or placement (in a public or private
transaction) of three percent (3%) or more of the amount of
such gross proceeds.
(c) To obtain the approval (or deemed approval) of
JMB Partner to any independent investment and financial advisor
contemplated in the immediately preceding subsection (b) or in
subsection 6(a) hereof, the Partnership shall give written
notice (an "Approval Notice") of the identity of such advisor
to JMB Partner. In the event such advisor shall be
unacceptable to JMB Partner, JMB Partner shall so advise the
Partnership in writing (giving a reasonably detailed statement
of the reasons therefor) within ten (10) days of receipt of
such notice, in which event the Partnership may propose another
advisor for approval in the same manner as set forth above or
pursue any remedies it may have against JMB Partner for failure
to act reasonably in not granting such approval. If JMB
Partner shall fail to respond to any Approval Notice within the
ten (10) day period referred to above, the independent
investment and financial advisor identified therein shall be
deemed approved by JMB Partner for all purposes of this
agreement. JMB Partner shall not in any event unreasonably
withhold approval of any financial advisor identified in an
Approval Notice.
SECTION 5. Board Proceedings. GP Corp. shall cause
to be provided to JMB, substantially contemporaneously with
distribution of copies thereof to members of its board of
directors (but in no event later than three (3) days after such
distribution), copies of all minutes of the meetings of such
board and copies of all resolutions thereof passed by written
consent. JMB shall treat all such materials as confidential
and shall not distribute any thereof or otherwise disclose any
information therein except as may be required to comply with
applicable law; provided, however, that prior to any
distribution or disclosure thereof, JMB shall cooperate with GP
Corp. to obtain an appropriate protective order relating
thereto.
SECTION 6. Reduction of Indebtedness. (a) Without
the written consent of JMB Partner (which consent may be
withheld in JMB Partner's sole and absolute discretion), the
Partnership shall not cause or permit the aggregate amount of
indebtedness secured by 245 Park Avenue (so long as the
Partnership shall own 245 Park Avenue) to be reduced below
$145,000,000 prior to January 2, 2003; provided, however, that
no such consent shall be required for any such reduction of
<PAGE>
such indebtedness occurring on or after January 2, 1999 if
(i) such reduction does not exceed the Maximum Reduction Amount
(as defined below) and (ii) at such time (A) the Partnership is
raising capital through the sale of new equity interests and
the purchaser or purchasers thereof require as a condition to
the purchase of such equity interests that the indebtedness
secured by 245 Park Avenue be reduced below $145,000,000 by a
dollar amount specified in writing by such purchaser or
purchasers (the "Maximum Reduction Amount"), and (B) the
reduction of such indebtedness by the Maximum Reduction Amount,
taking into account the prepayment penalties, if any, on all
the existing debt obligations secured by 245 Park Avenue, will
result in materially better terms (as reasonably determined by
an independent investment and financial advisor selected by the
Partnership and approved or deemed approved by JMB Partner in
accordance with the provisions of subsection 4(c) hereof) for
such equity sale than if the indebtedness secured by 245 Park
Avenue were not so reduced (each such equity sale, a
"Qualifying Equity Sale").
(b) If the indebtedness secured by 245 Park Avenue
is to be reduced below $145,000,000 in accordance with a
Qualifying Equity Sale, the Partnership shall not consummate or
permit the consummation of such Qualifying Equity Sale unless
(i) the Partnership arranges for the purchase, and offers to
JMB Partner the right to sell, all (or at JMB's election, any
part) of JMB Partner's Class A Units at a gross price per
Class A Unit that is equivalent to the gross price at which the
Partnership is selling its new equity securities and
(ii) either (A) JMB Partner declines to sell any of such Class
A Units or (B) the Qualifying Equity Sale actually closes for
the purchase and sale of Class A Units that JMB Partner has
elected to sell.
(c) The preceding provisions of this Section 6 shall
expire and be of no further force or effect whatsoever upon the
first to occur of (i) any sale or other similar conveyance of
245 Park Avenue by the Partnership or Persons Controlled by it
that does not violate the provisions of Section 4 above, (ii)
any Disqualifying Transfer and (iii) January 2, 2003.
SECTION 7. JMB Payments. The Partnership shall pay
to JMB, for a period of sixty (60) months commencing with the
month following the month of execution of this agreement, a
monthly payment in arrears in an amount equal to one-third of
the property management fees for 245 Park Avenue that are
actually payable to the Partnership or its designee pursuant to
the provisions of the loan instruments evidencing the
indebtedness secured by 245 Park Avenue or otherwise (the
"JMB/245 Park Payments"); provided, however, that the JMB/245
<PAGE>
Park Payments shall not, in any twelve month period be less
than $400,000 or greater than $600,000; and provided, further,
that the JMB/245 Park Payments shall not, in the aggregate for
such sixty (60) month period, be less than $2,300,000. The
JMB/245 Park Payment in respect of each month shall be due and
payable (in immediately available funds) on the first day of
the immediately succeeding month. All such payments shall be
paid to JMB at its address set forth in Section 19 hereof. All
JMB/245 Park Payments shall be due and payable without defense
or counterclaim of any kind. Without limiting the generality
of the foregoing, the JMB/245 Park Payments shall be payable in
any and all events even if, for any reason, the Partnership or
its designee does not actually receive the property management
fees, if any, payable to the Partnership as referred to in the
first sentence of this Section 7.
SECTION 8. Professional Costs. Contemporaneously
with the execution of this agreement, JMB shall be reimbursed
by the Partnership for up to $375,000 of its out-of-pocket
costs and expenses actually incurred in implementing the
transactions contemplated by Sections 15.8.1 and 18.13 of the
Plan (including the reasonable fees and expenses of legal and
accounting professionals).
SECTION 9. Releases. In addition to the releases
provided in Section 24 of the Plan, contemporaneously with the
execution and delivery of this agreement, JMB and certain of
its Affiliates, on the one hand, and the O&Y Affiliates (as
defined in the Plan), on the other hand, shall each execute and
deliver mutual releases (each, a "Release") of certain of their
respective claims against the others. Such Releases shall be
in the forms annexed as Exhibit A and Exhibit B hereto,
respectively.
SECTION 10. Selection of Director. (a) Within
thirty (30) days after the execution and delivery of this
agreement, GP Corp. shall send a Designation Notice (as defined
below) to JMB Partner and JMB Partner shall (in the manner set
forth below) consent to the election of one of the three (3)
Independent Persons (as defined below) named therein to serve
as one of the directors of GP Corp. (the "JMB-Approved
Director"). So long as JMB Partner shall be a general partner
of the Partnership, JMB Partner shall have the right, from time
to time, to consent (in the manner set forth below) to the
selection of an Independent Person to serve as the JMB-Approved
Director. Within thirty (30) days after each Replacement Date
(as defined below), GP Corp. shall give written notice (a
"Designation Notice") to JMB Partner setting forth the names of
not less than three (3) Independent Persons who are eligible to
act as a JMB-Approved Director. JMB Partner's consent rights
<PAGE>
under this Section shall be exercised in a written notice given
to GP Corp. not later than fifteen (15) days after the date
that JMB Partner shall receive any Designation Notice. In such
notice, JMB Partner shall specify which one of the Persons
identified in the Designation Notice to whom it consents to
serve as the JMB-Approved Director. Upon any failure by JMB
Partner to respond to a Designation Notice within such fifteen
(15) day period or, upon responding, in the case of any failure
to consent to one of the Persons identified in the Designation
Notice, GP Corp. shall have the right to select the JMB-
Approved Director from among such Persons (or any other Person
mutually acceptable to JMB Partner and the Board of Directors
of GP Corp.). Promptly following notice that any Person
constituting a JMB-Approved Director has ceased to be an
Independent Person, GP Corp. shall cause the removal of such
Person as a director of GP Corp.; provided, however, that
nothing set forth in this Section 10 shall be construed to give
JMB Partner any right to remove the JMB Director or to limit or
impair the right of any other Person to remove any director of
GP Corp. in accordance with the provisions of the By-laws of GP
Corp.
(b) "Independent Person" means a natural Person who
is not (i) a director, officer or employee of or subject to
control by any of Citibank Partner, CIBC Partner, BPHI Partner,
Dragon Partner or any Affiliate of any thereof, (ii) an officer
or employee of GP Corp., the Partnership or any Person
Controlled by GP Corp. or the Partnership or (iii) the legal or
beneficial owner of any equity interest in or debt securities
convertible into or exchangeable for any equity interest in GP
Corp. or any Person Controlled by GP Corp.
(c) "Replacement Date" means, with respect to any
Person constituting a JMB-Approved Director, any date that
(i) GP Corp. first becomes aware that such Person has ceased to
be an Independent Person, (ii) such Person dies or is
incapacitated or declared incompetent, (iii) the resignation of
such Person as a director of GP Corp. becomes effective,
(iv) such Person is removed as a director of GP Corp. or
(v) such Person's term as a director of GP Corp. expires for
any reason other than those described in clauses (i) through
(iv) above.
SECTION 11. Representations and Warranties.
(a) Each of JMB and JMB Partner jointly and severally
represents and warrants to each of the other parties hereto
that (i) each of the Release executed by it, this agreement and
the WFP Partnership Agreement has been duly and validly
authorized, executed and delivered by it and represents its
binding obligation, enforceable against it in accordance with
<PAGE>
its terms, (ii) neither JMB nor JMB Partner is, or, upon the
execution and delivery by JMB Partner of the WFP Partnership
Agreement and this agreement, will be an "investment company"
as defined in, or subject to regulation under, or is required
to register under, the Investment Company Act of 1940, as
amended, and (iii) the execution, delivery and performance by
it of each of such Release, this agreement and the WFP
Partnership Agreement does not breach or violate any obligation
or instrument to which JMB or JMB Partner is a party or the
organizational documents of JMB or JMB Partner or any
applicable law, statute or regulation binding on JMB or JMB
Partner or their respective assets.
(b) Each party hereto other than JMB and JMB
Partner, severally and not jointly, represents and warrants to
each of JMB and JMB Partner that (i) each of this agreement and
the WFP Partnership Agreement has been duly and validly
authorized, executed and delivered by it and represents its
binding obligation, enforceable against it in accordance with
its terms, (ii) such party is not and, upon the execution and
delivery by it of the WFP Partnership Agreement and this
agreement, will not be an "investment company" as defined in,
or subject to regulation under, or required to register under,
the Investment Company Act of 1940, as amended, and (iii) the
execution,delivery and performance by it of each of this
agreement and the WFP Partnership Agreement does not breach or
violate any obligation or instrument to which it is a party or
its organizational documents or any applicable law, statute or
regulation binding on it or its assets.
(c) The representations and warranties set forth in
this Section 11 shall not survive the execution and delivery of
this agreement and the WFP Partnership Agreement.
SECTION 12. Entire Agreement. This agreement and
the other agreements executed and delivered pursuant to the
Plan contain the entire agreement among the parties and
supersede 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.
SECTION 13. Headings. The section headings and
paragraph titles of this agreement are for convenience of
reference only 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.
<PAGE>
SECTION 14. Governing Law. This agreement shall be
governed by and construed in accordance with the law of the
State of New York without regard to principles of conflicts of
laws.
SECTION 15. Amendment. This agreement may not be
amended, modified or supplemented and no waivers of or consents
to departures from the provisions hereof may be given unless
consented to in writing by all the parties sought to be bound
thereby. Unless otherwise specified in such waiver or consent,
a waiver or consent given hereunder shall be effective only in
the specific instance and for the specific purpose for which
given.
SECTION 16. Binding Agreement. This agreement shall
be binding upon, and inure to the benefit of, the parties
hereto and their respective heirs, executors, personal
representatives, successors and assigns.
SECTION 17. Counterparts and Effectiveness. This
agreement may be executed in several counterparts, which shall
be treated as originals for all purposes, and all as so
executed shall constitute one agreement, binding on all of the
parties hereto, notwithstanding that all the parties are not
signatory to the same counterpart. The execution and delivery
of this agreement by facsimile shall be valid and binding for
all purposes.
SECTION 18. Waiver of Trial by Jury. Each party
hereto, 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.
SECTION 19. Notices. All notices and other
communications provided for herein shall be dated and in
writing and shall be deemed to have been duly given and
effective three (3) Business Days after mailing, if sent by
registered or certified mail, return receipt requested, postage
prepaid, and when received, if delivered otherwise (including
by facsimile), to the party to whom it is directed:
<PAGE>
(a) If to any of the Partnership, BPHI or GP Corp.,
to it at the following address:
One Liberty Plaza
New York, New York 10006
Attention:
with a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Attention: Richard J. Sabella, Esq.
(b) If to JMB, to it at the following address:
900 North Michigan Avenue
19th Floor
Chicago, Illinois 60611
Attention: Stuart C. Nathan
Gary Nickele, Esq.
with a copy to:
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
Attention: Martin Rosenstein, Esq.
(c) If to JMB Partner, to it at the following
address:
900 North Michigan Avenue
19th Floor
Chicago, Illinois 60611
Attention: Stuart C. Nathan
Gary Nickele, Esq.
with a copy to:
Pircher, Nichols & Meeks
1999 Avenue of the Stars
Suite 2600
Los Angeles, CA 90067
Attention: Real Estate Notices
<PAGE>
(d) If to Citibank Partner, to it at the following
address:
Citibank, N.A.
599 Lexington Avenue
25th Floor
New York, New York 10022
Attention: James Huddleston
Wendy Silverstein
with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Attention: George Wade, Esq.
(e) If to CIBC Partner, to it at the following
address:
Canadian Imperial Bank of Commerce
Commerce Court West, 6th Floor
Toronto, Ontario
CANADA M5L 1A2
Attention: Mr. Brian T. McDonough
with a copy to:
Sidley & Austin
875 Third Avenue
New York, New York 10022
Attention: James D. Johnson, Esq.
(f) If to Dragon Partner, to it at the following
address:
c/o Concord Property and
Finance Co., Ltd.
China Building, 21st Floor
No. 29 Queen's Road Central
Hong Kong
Attention: Mr. Frank J. Sixt
with a copy to:
Coudert Brothers
The Grace Building
1114 Avenue of the Americas
New York, New York 10036
Attention: Gerard V. Hannon, Esq.
<PAGE>
or at such other address as such party shall have specified by
notice in writing to the other parties hereto in accordance
with the provisions of this Section 19.
SECTION 20. Invalidity of Provisions. The
invalidity or unenforceability of any provision of this
agreement in any jurisdiction shall not affect the validity or
enforceability of the remainder of this agreement in that
jurisdiction or the validity or enforceability of this
agreement, including that provision, in any other jurisdiction.
<PAGE>
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.
JMB/245 PARK AVENUE ASSOCIATES, LTD.
By: JMB PARK AVENUE, INC., a general
partner
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, L.P.
By: WORLD FINANCIAL PROPERTIES, INC.,
its general partner
By:
Name:
Title:
BATTERY PARK HOLDINGS INC.
By:
Name:
Title:
<PAGE>
CANADIAN IMPERIAL BANK
OF COMMERCE
By:
Name:
Title:
By:
Name:
Title:
WFP HOLDINGS LIMITED PARTNERSHIP
By: WFP CORP., its general partner
By:
Name:
Title:
EMERALD LP HOLDINGS, INC.
By:
Name:
Title:
<PAGE>
EXHIBIT A
RELEASE
RELEASE, made as of November 21, 1996, by JMB/245
PARK AVENUE ASSOCIATES, LTD., an Illinois limited partnership
(together with its successors and assigns, "JMB") and JMB 245
PARK AVENUE HOLDING COMPANY, LLC, a Delaware limited liability
company (together with its successors and assigns, "JMB
Partner") in favor of THE O&Y AFFILIATES SET FORTH ON SCHEDULE
I ATTACHED HERETO AND THE OTHER RELEASEES (as hereinafter
defined).
R E C I T A L S:
A. In furtherance of the consummation of the
transactions contemplated 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
as of September 12, 1996 and confirmed by the United States
Bankruptcy Court for the Southern District of New York on
September 20, 1996 (as such Plan may be amended from time to
time, the "Plan"), World Financial Properties, L.P., a Delaware
limited partnership (the "Partnership"), has been formed
pursuant to that certain amended and restated agreement of
limited partnership, dated as of November 21, 1996 (the "WFP
Partnership Agreement").
B. Pursuant to that certain JMB Transaction
Agreement (the "JMB Transaction Agreement"), dated as of
November 21, 1996, among JMB, JMB Partner, the Partnership, and
certain other parties, the parties thereto have set forth
certain agreements contemplated in the Plan.
C. This instrument is being executed and delivered
pursuant to the provisions of Section 9 of the JMB Transaction
Agreement.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the foregoing
premises and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, JMB and JMB
Partner hereby agree as follows:
<PAGE>
1. Release. JMB and JMB Partner hereby forever
release and discharge (a) the O&Y Affiliates, (b) the
respective successors, predecessors, assignors or assignees of
any of the foregoing, in their capacity as such, (c) all
current or former stockholders, partners or owners of any of
the foregoing, in their capacity as such, and (d) all current
and former officers, directors, trustees, employees, agents,
attorneys, accountants, financial advisors, investment bankers,
appraisers, advisors and engineers of any of the foregoing, in
their capacity as such (collectively, the "Releasees"), in each
case of and from any and all claims or demands of whatsoever
nature relating to the property known as 245 Park Avenue, New
York, New York or to the partnership known as 245 Park Avenue
Company, including, without limiting the generality of the
foregoing, any and all manner of actions, causes of action,
suits, debts, dues, sums of money, accounts, contracts, claims,
third-party claims, cross-claims, counter-claims, demands,
agreements, controversies, judgments, damages, liabilities,
promises, variances, reckonings, bonds, bills, specialities,
covenants, liens, encumbrances, trespasses, leases,
subordinations, security interests, duties and obligations of
any nature whatsoever, whether present or future, whether known
or unknown, whether suspected or unsuspected, whether
liquidated or unliquidated, whether matured or unmatured,
whether direct, indirect, or derivative, whether fixed or
contingent, whether secured or unsecured, and whether or not
the same are based upon violation of any law or regulation, or
otherwise in law, admiralty, equity, or bankruptcy, which JMB
or JMB Partner or any heirs, administrators, executors,
successors or assigns or anyone claiming in a derivative
capacity from, through or under JMB or JMB Partner or any of
the foregoing, ever jointly or individually had, now has or
have, or hereafter can, shall or may have against any Releasee,
for, on or by reason of any matter, cause or thing whatsoever
relating to the property known as 245 Park Avenue, New York,
New York or to the partnership known as 245 Park Avenue
Company; provided, however, that the foregoing provisions of
this instrument shall not be construed to release or otherwise
affect any Claims (as defined in the Plan) or interests in
connection with the transactions contemplated by the Plan,
including, without limitation, any rights of the undersigned
under the Partnership Agreement or the JMB Transaction
Agreement or the registrations rights agreement dated as of
November 20, 1996 and relating to certain interests in the
Partnership; and provided, further, that the Releasees shall
not include (i) any and all Reichman Entities (as defined in
the Plan), (ii) Coopers & Lybrand OYDL, (iii) Olympia & York
(U.S.) Holdings Company, (iv) O&Y 25 Realty Company, and
(v) O&Y 25 Realty Company, L.P.
<PAGE>
2. Severability. In case any one or more of the
provisions contained in this instrument shall be found to be
invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired
thereby, and this instrument shall continue in full force and
effect in accordance with its remaining terms.
3. Governing Law. This instrument shall be
governed by and construed and enforced in accordance with, the
laws of the State of New York without regard for principles of
conflicts of laws.
4. Entire Agreement; Amendments. This instrument
constitutes the entire understanding of the parties hereto with
respect to the subject matter hereof and supersedes all prior
agreements and understandings, whether written or oral, between
the parties, and cannot be changed or modified unless in
writing and signed by the parties hereto.
5. Waiver. No term or provision hereof shall be
deemed waived and no breach excused unless such waiver or
consent shall be in writing and signed by the party claimed to
have waived or consented.
6. Headings. The headings used in this instrument
are inserted as a matter of convenience and for reference
purposes only, are of no binding effect, and in no respect
define, limit or describe the scope of this instrument or the
intent of this instrument.
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has
signed this instrument as set forth below to be effective as of
the date first above written.
JMB/245 PARK AVENUE ASSOCIATES, LTD.
By: JMB PARK AVENUE, INC.,
a general partner
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, L.P.
By: WORLD FINANCIAL PROPERTIES, INC.,
its general partner
By:
Name:
Title:
<PAGE>
SCHEDULE I
O&Y Affiliates means the following entities:
1. Amland Properties Corp.
2. Olympia & York and Andrews Associates Venture
3. Baden Real Estate Corp.
4. Brunswash Development Corporation
5. Olympia & York Bryan Holding Company
6. Cabot Estate Development Company
7. Olympia & York Cherry Creek Company
8. Chicago-Superior Associates
9. Olympia & York Co., Inc.
10. Olympia & York Colorado Development Corp.
11. Olympia & York Communications, Inc.
12. Olympia & York Companies (U.S.A.), Inc.
13. O&Y Concord 60 Broad Street Company
14. O&Y Construction Corp.
15. Olympia & York Cypress Corp.
16. O&Y Cypress Florida Inc.
17. O&Y Dalland Corp.
18. Olympia & York Denver Properties Corp.
19. Devco - 11601-A, L.P.
20. Devco - 11601-B, L.P.
21. Dev GP 53 Holding Corp.
22. O&Y Devcon, Inc.
23. O&Y Development Holding Corp.
24. Olympia & York Development (Seattle) Company
25. O&Y Equity (Canada) Ltd.
26. O&Y Equity Company, L.P.
27. O&Y Equity General Partner Corp.
28. Olympia & York FCA Inc.
29. O&Y FEC Corp.
30. O&Y FEC Corp. Venture
31. Federal Center Associates
32. O&Y Financial Company
33. Financial Plaza Trust
34. O&Y Fiscal Corporation
35. Olympia & York Florida Equity Corp.
36. Forum Properties Corp.
37. Olympia & York Fountain Plaza Company
38. Olympia & York Grampian Corp.
39. Hartford Park Associates
40. Olympia & York Homes Corporation
41. O&Y Hope Street, Inc.
42. O&Y I/S Guide Inc.
43. Izzard Corp.
44. Olympia & York Jefferson Street Company
45. Olympia & York KOIN Center Company
<PAGE>
46. O&Y Liberty Plaza Company
47. Olympia & York Maiden Lane Company
48. Olympia & York Maiden Lane Finance Corp.
49. O&Y Maintenance Corp.
50. O&Y Management Corp.
51. Olympia & York Mass. Investment Corp.
52. Olympia & York Massachusetts Financial Company
53. Miami Center Joint Venture
54. NH Corp.
55. O&Y NY Building Corp.
56. O&Y OCP Corp.
57. Olympia & York OLP Company
58. Olympia/Roberts Company
59. Olympia Centre Holding Company, L.P.
60. One Commercial Plaza (Unnamed Co-Tenancy)
61. One Financial Plaza (Unnamed Joint Venture)
62. Orion Limited Partnership
63. OYCI Video, Inc.
64. Pennland Properties Corp.
65. Perkins Realty Trust
66. O&Y Plaza Corp.
67. Olympia & York Properties (Portland) Company
68. Olympia & York Real Estate (USA) Inc.
69. Olympia & York Realty Corp.
70. Olympia & York Residential Corp.
71. O&Y REUSA TALP Subsidiary Corp.
72. Senior Associates
73. Olympia & York SF Holdings Corporation
74. South Brunswick Industrial Properties Limited
Partnership
75. Brunswash Development Corporation
76. Olympia (U.S.) Development Subsidiary Corp.
77. Olympia & York Southeast Equity Corp.
78. Olympia & York State Limited Partnership
79. Olympia & York State Street Company
80. SYR Mall Corp.
81. O&Y Tower A Holding Company
82. O&Y Tower A Limited Partnership
83. Olympia & York Tower B Company
84. O&Y Tower B Holding Company I
85. Olympia & York Tower B Lease Company
86. O&Y Tower D Holding Company I
87. O&Y Tower D Holding Company II
88. Trinity Place Company
89. O&Y (U.S.) Development Canada Ltd.
90. O&Y (U.S.) Development Company, L.P
91. O&Y (U.S.) Development General Partner Corp.
92. O&Y (U.S.) Financial Company
93. O&Y Venture Corp.
94. Olympia & York Water Street Company
<PAGE>
95. West 31st Street Associates
96. O&Y WFC Maintenance Corp.
97. Olympia & York WFC Retail Company
98. WFC Tower A Company
99. O&Y WFC Tower Corp.
100. WFC Tower D Company
101. Olympia & York World Financial Center Finance Corp.
102. O&Y YBG Corp.
103. O&Y YBG L.P.
104. Yerba Buena Gardens, L.P.
105. York Venture Co.
106. 2 Broadway Associates
107. 2 Broadway Land Company
108. O&Y 7 Hanover Leasing Company, L.P.
109. O&Y 53 Finance Corp.
110. 53 Holding Company, L.P.
111. 53 State Street Corp.
112. O&Y 55 WS Lease Co., L.P.
113. 60 Broad Street Management Corp.
114. 125 Broad Street Company
115. O&Y 233 Park South Company, L.P.
116. 237 Park Avenue Associates, L.L.C.
117. O&Y 245 Corp.
118. Olympia & York 245 Lease Company
119. 245 Park Avenue Company
120. Olympia & York 245 Park Avenue Holding Company, L.P.
121. Olympia & York 320 G.O.T. Company
122. Olympia & York 320 Park Company
123. O&Y 320 Park Corp.
124. 1290 Associates, L.L.C.
125. 1999 Bryan Street Ltd.
126. 11601 Holding Corp.
127. 11601 Holdings, L.P.
128. 11601 Wilshire Associates
<PAGE>
EXHIBIT B
RELEASE
RELEASE, made as of November 21, 1996, by THE O&Y
AFFILIATES SET FORTH ON SCHEDULE I ATTACHED HERETO, in favor of
JMB/245 PARK AVENUE ASSOCIATES, LTD., an Illinois limited
partnership (together with its successors and assigns, "JMB"),
JMB 245 PARK AVENUE HOLDING COMPANY, LLC, a Delaware limited
liability company (together with its successors and assigns,
"JMB Partner") AND THE OTHER RELEASEES (as hereinafter
defined).
R E C I T A L S:
A. In furtherance of the consummation of the
transactions contemplated 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
as of September 12, 1996 and confirmed by the United States
Bankruptcy Court for the Southern District of New York on
September 20, 1996 (as such Plan may be amended from time to
time, the "Plan"), World Financial Properties, L.P., a Delaware
limited partnership (the "Partnership"), has been formed
pursuant to that certain amended and restated agreement of
limited partnership, dated as of November 21, 1996 (the "WFP
Partnership Agreement").
B. Pursuant to that certain JMB Transaction
Agreement (the "JMB Transaction Agreement"), dated as of
November 21, 1996, among JMB, JMB Partner, the Partnership, and
certain other parties, the parties thereto have set forth
certain agreements contemplated in the Plan.
C. This instrument is being executed and delivered
pursuant to the provisions Section 9 of the JMB Transaction
Agreement.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the foregoing
premises and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the O&Y
Affiliates hereby agree as follows:
<PAGE>
1. Release. The O&Y Affiliates hereby forever
release and discharge (a) JMB and JMB Partner, (b) the
respective successors, predecessors, assignors or assignees of
any of the foregoing, in their capacity as such, (c) all
current or former stockholders, partners or owners of any of
the foregoing, in their capacity as such, and (d) all current
and former officers, directors, trustees, employees, agents,
attorneys, accountants, financial advisors, investment bankers,
appraisers, advisors and engineers of any of the foregoing, in
their capacity as such (collectively, the "Releasees"), in each
case of and from any and all claims or demands of whatsoever
nature relating to the property known as 245 Park Avenue, New
York, New York, or to the partnership known as 245 Park Avenue
Company, including, without limiting the generality of the
foregoing, any and all manner of actions, causes of action,
suits, debts, dues, sums of money, accounts, contracts, claims,
third-party claims, cross-claims, counter-claims, demands,
agreements, controversies, judgments, damages, liabilities,
promises, variances, reckonings, bonds, bills, specialities,
covenants, liens, encumbrances, trespasses, leases,
subordinations, security interests, duties and obligations of
any nature whatsoever, whether present or future, whether known
or unknown, whether suspected or unsuspected, whether
liquidated or unliquidated, whether matured or unmatured,
whether direct, indirect, or derivative, whether fixed or
contingent, whether secured or unsecured, and whether or not
the same are based upon violation of any law or regulation, or
otherwise in law, admiralty, equity, or bankruptcy, which any
of the O&Y Affiliates or any heirs, administrators, executors,
successors or assigns or anyone claiming in a derivative
capacity from, through or under any of the O&Y Affiliates or
any of the foregoing, ever jointly or individually had, now has
or have, or hereafter can, shall or may have against any
Releasee, for, on or by reason of any matter, cause or thing
whatsoever relating to the property known as 245 Park Avenue,
New York, New York, or to the partnership known as 245 Park
Avenue Company; provided, however, that the foregoing
provisions of this instrument shall not be construed to release
or otherwise affect any Claims (as defined in the Plan) or
interests in connection with the transactions contemplated by
the Plan, including, without limitation, any rights of the
undersigned under the Partnership Agreement or the JMB
Transaction Agreement or the registration rights agreement
dated as of November 20, 1996 and relating to certain
interests, in the Partnership.
2. Severability. In case any one or more of the
provisions contained in this instrument shall be found to be
invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions
<PAGE>
contained herein shall not in any way be affected or impaired
thereby, and this instrument shall continue in full force and
effect in accordance with its remaining terms.
3. Governing Law. This instrument shall be
governed by and construed and enforced in accordance with, the
laws of the State of New York without regard for principles of
conflicts of laws.
4. Entire Agreement; Amendments. This instrument
constitutes the entire understanding of the parties hereto with
respect to the subject matter hereof and supersedes all prior
agreements and understandings, whether written or oral, between
the parties, and cannot be changed or modified unless in
writing and signed by the parties hereto.
5. Waiver. No term or provision hereof shall be
deemed waived and no breach excused unless such waiver or
consent shall be in writing and signed by the party claimed to
have waived or consented.
6. Headings. The headings used in this instrument
are inserted as a matter of convenience and for reference
purposes only, are of no binding effect, and in no respect
define, limit or describe the scope of this instrument or the
intent of this instrument.
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has
signed this instrument as set forth below to be effective as of
the date first above written.
[ ]
By: _____________________________
Name:
Title:
<PAGE>
SCHEDULE I
O&Y Affiliates means the following entities:
1. Amland Properties Corp.
2. Olympia & York and Andrews Associates Venture
3. Baden Real Estate Corp.
4. Brunswash Development Corporation
5. Olympia & York Bryan Holding Company
6. Cabot Estate Development Company
7. Olympia & York Cherry Creek Company
8. Chicago-Superior Associates
9. Olympia & York Co., Inc.
10. Olympia & York Colorado Development Corp.
11. Olympia & York Communications, Inc.
12. Olympia & York Companies (U.S.A.), Inc.
13. O&Y Concord 60 Broad Street Company
14. O&Y Construction Corp.
15. Olympia & York Cypress Corp.
16. O&Y Cypress Florida Inc.
17. O&Y Dalland Corp.
18. Olympia & York Denver Properties Corp.
19. Devco - 11601-A, L.P.
20. Devco - 11601-B, L.P.
21. Dev GP 53 Holding Corp.
22. O&Y Devcon, Inc.
23. O&Y Development Holding Corp.
24. Olympia & York Development (Seattle) Company
25. O&Y Equity (Canada) Ltd.
26. O&Y Equity Company, L.P.
27. O&Y Equity General Partner Corp.
28. Olympia & York FCA Inc.
29. O&Y FEC Corp.
30. O&Y FEC Corp. Venture
31. Federal Center Associates
32. O&Y Financial Company
33. Financial Plaza Trust
34. O&Y Fiscal Corporation
35. Olympia & York Florida Equity Corp.
36. Forum Properties Corp.
37. Olympia & York Fountain Plaza Company
38. Olympia & York Grampian Corp.
39. Hartford Park Associates
40. Olympia & York Homes Corporation
41. O&Y Hope Street, Inc.
42. O&Y I/S Guide Inc.
43. Izzard Corp.
44. Olympia & York Jefferson Street Company
45. Olympia & York KOIN Center Company
<PAGE>
46. O&Y Liberty Plaza Company
47. Olympia & York Maiden Lane Company
48. Olympia & York Maiden Lane Finance Corp.
49. O&Y Maintenance Corp.
50. O&Y Management Corp.
51. Olympia & York Mass. Investment Corp.
52. Olympia & York Massachusetts Financial Company
53. Miami Center Joint Venture
54. NH Corp.
55. O&Y NY Building Corp.
56. O&Y OCP Corp.
57. Olympia & York OLP Company
58. Olympia/Roberts Company
59. Olympia Centre Holding Company, L.P.
60. One Commercial Plaza (Unnamed Co-Tenancy)
61. One Financial Plaza (Unnamed Joint Venture)
62. Orion Limited Partnership
63. OYCI Video, Inc.
64. Pennland Properties Corp.
65. Perkins Realty Trust
66. O&Y Plaza Corp.
67. Olympia & York Properties (Portland) Company
68. Olympia & York Real Estate (USA) Inc.
69. Olympia & York Realty Corp.
70. Olympia & York Residential Corp.
71. O&Y REUSA TALP Subsidiary Corp.
72. Senior Associates
73. Olympia & York SF Holdings Corporation
74. South Brunswick Industrial Properties Limited
Partnership
75. Brunswash Development Corporation
76. Olympia (U.S.) Development Subsidiary Corp.
77. Olympia & York Southeast Equity Corp.
78. Olympia & York State Limited Partnership
79. Olympia & York State Street Company
80. SYR Mall Corp.
81. O&Y Tower A Holding Company
82. O&Y Tower A Limited Partnership
83. Olympia & York Tower B Company
84. O&Y Tower B Holding Company I
85. Olympia & York Tower B Lease Company
86. O&Y Tower D Holding Company I
87. O&Y Tower D Holding Company II
88. Trinity Place Company
89. O&Y (U.S.) Development Canada Ltd.
90. O&Y (U.S.) Development Company, L.P.
91. O&Y (U.S.) Development General Partner Corp.
92. O&Y (U.S.) Financial Company
93. O&Y Venture Corp.
94. Olympia & York Water Street Company
<PAGE>
95. West 31st Street Associates
96. O&Y WFC Maintenance Corp.
97. Olympia & York WFC Retail Company
98. WFC Tower A Company
99. O&Y WFC Tower Corp.
100. WFC Tower D Company
101. Olympia & York World Financial Center Finance Corp.
102. O&Y YBG Corp.
103. O&Y YBG L.P.
104. Yerba Buena Gardens, L.P.
105. York Venture Co.
106. 2 Broadway Associates
107. 2 Broadway Land Company
108. O&Y 7 Hanover Leasing Company, L.P.
109. O&Y 53 Finance Corp.
110. 53 Holding Company, L.P.
111. 53 State Street Corp.
112. O&Y 55 WS Lease Co., L.P.
113. 60 Broad Street Management Corp.
114. 125 Broad Street Company
115. O&Y 233 Park South Company, L.P.
116. 237 Park Avenue Associates, L.L.C.
117. O&Y 245 Corp.
118. Olympia & York 245 Lease Company
119. 245 Park Avenue Company
120. Olympia & York 245 Park Avenue Holding Company, L.P.
121. Olympia & York 320 G.O.T. Company
122. Olympia & York 320 Park Company
123. O&Y 320 Park Corp.
124. 1290 Associates, L.L.C.
125. 1999 Bryan Street Ltd.
126. 11601 Holding Corp.
127. 11601 Holdings, L.P.
128. 11601 Wilshire Associates
<PAGE>
LIMITED LIABILITY COMPANY AGREEMENT
OF
JMB 245 Park Avenue Holding Company, LLC
a Delaware limited liability company
Dated as of November 12, 1996
Table of Contents
------------------
SECTION 1. Formation of Limited Liability Company . . . . . . . 1
SECTION 2. Name . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 3. Definitions. . . . . . . . . . . . . . . . . . . . . 1
SECTION 4. Business of the Company. . . . . . . . . . . . . . . 4
SECTION 5. Term . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 6. Principal Place of Business. . . . . . . . . . . . . 4
SECTION 7. Registered Agent; Registered Office. . . . . . . . . 4
SECTION 8. Capital Contributions; No Withdrawal or
Resignation. . . . . . . . . . . . . . . . . . . . . 5
(a) Initial Capital Contributions . . . . . . . 5
(b) Additional Contributions; Interest . . . . 5
(c) Withdrawal and Resignation; Return of
Capital Contribution. . . . . . . . . . . . 5
SECTION 9. Distributions; Operating Covenants.. . . . . . . . . 5
SECTION 10. Allocation of Income and Losses . . . . . . . . . . 6
(a) Allocations . . . . . . . . . . . . . . . . 6
(b) Change in Membership Interests. . . . . . . 6
(c) Special Rules . . . . . . . . . . . . . . . 6
SECTION 11. Withholding. . . . . . . . . . . . . . . . . . . . . 6
SECTION 12. Books, Records and Accounting. . . . . . . . . . . . 6
(a) Books and Records . . . . . . . . . . . . . 6
(b) Fiscal Year; Accounting . . . . . . . . . . 6
(c) Reports . . . . . . . . . . . . . . . . . . 7
(d) Expenses. . . . . . . . . . . . . . . . . . 7
SECTION 13. Company Funds. . . . . . . . . . . . . . . . . . . . 7
SECTION 14. Management . . . . . . . . . . . . . . . . . . . . . 7
(a) The Manager . . . . . . . . . . . . . . . . 7
(b) Resignation . . . . . . . . . . . . . . . . 7
(c) Limitations on Powers . . . . . . . . . . . 7
(d) Reimbursement . . . . . . . . . . . . . . . 7
SECTION 15. Meetings . . . . . . . . . . . . . . . . . . . . . . 7
(a) Meetings of Members . . . . . . . . . . . . 8
(b) Consent of Members. . . . . . . . . . . . . 8
SECTION 16. Voting . . . . . . . . . . . . . . . . . . . . . . 8
(a) Members . . . . . . . . . . . . . . . . . . 8
(b) Voting. . . . . . . . . . . . . . . . . . . 8
(c) Actions Requiring Unanimous Member
Approval. . . . . . . . . . . . . . . . . . 8
SECTION 17. Limitation of Liability and Indemnification. . . . . 8
(a) Limitation of Liability . . . . . . . . . . 8
(b) Indemnification . . . . . . . . . . . . . . 9
(c) Expenses. . . . . . . . . . . . . . . . . . 9
(d) Not Exclusive . . . . . . . . . . . . . . . 9
(e) Insurance . . . . . . . . . . . . . . . . . 9
(f) Reimbursement . . . . . . . . . . . . . . . 10
SECTION 18. Assignment of Membership Interests and
New Members . . . . . . . . . . . . . . . . . . . 10
(a) Assignment. . . . . . . . . . . . . . . . . 10
(b) Limitations on Assignment . . . . . . . . . 10
(c) New Members . . . . . . . . . . . . . . . . 10
SECTION 19. Dissolution. . . . . . . . . . . . . . . . . . . . . 10
SECTION 20. Winding Up and Distribution of Assets. . . . . . . . 11
(a) Winding Up. . . . . . . . . . . . . . . . . 11
(b) Distribution of Assets. . . . . . . . . . . 11
SECTION 21. Conflict of Interest. . . . . . . . . . . . . . . . 11
SECTION 22. Taxation . . . . . . . . . . . . . . . . . . . . . . 12
(a) Status of the Company . . . . . . . . . . . 12
(b) Tax Elections . . . . . . . . . . . . . . . 12
(c) Company Tax Returns . . . . . . . . . . . . 12
(d) Tax Audits. . . . . . . . . . . . . . . . . 13
SECTION 23. JMB's Rights . . . . . . . . . . . . . . . . . . . . 14
SECTION 24. Miscellaneous. . . . . . . . . . . . . . . . . . . . 14
(a) Governing Law . . . . . . . . . . . . . . . 14
(b) Binding Effect. . . . . . . . . . . . . . . 14
(c) Pronouns and Number . . . . . . . . . . . . 14
(d) Captions. . . . . . . . . . . . . . . . . . 14
(e) Enforceability. . . . . . . . . . . . . . . 15
(f) Counterparts. . . . . . . . . . . . . . . . 15
(g) Notices . . . . . . . . . . . . . . . . . . 15
(h) Entire Agreement; Amendment . . . . . . . . 16
(i) Further Assurances. . . . . . . . . . . . . 16
(j) Third Parties . . . . . . . . . . . . . . . 16
(k) Facsimile Signatures. . . . . . . . . . . . 16
(l) Reliance upon Books, Reports and Records. . 16
(m) Time Periods. . . . . . . . . . . . . . . . 16
(n) Waiver. . . . . . . . . . . . . . . . . . . 17
SCHEDULE I . . . . . . . . . . . . . . . . . . . . . . 1
LIMITED LIABILITY COMPANY AGREEMENT
OF
JMB 245 PARK AVENUE HOLDING COMPANY, LLC
This Limited Liability Company Agreement of JMB 245 Park Avenue
Holding Company, LLC (the "Company") is made and entered into as of the
12th day of November, 1996 by and among the Members listed on Schedule I
attached hereto.
WHEREAS, subsequent to the adoption of the Reorganization Plan,
the parties hereto have decided to organize the Company as a limited
liability company rather than as a limited partnership; and
WHEREAS, the parties hereto desire to adopt and approve this
Agreement for the Company.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. FORMATION OF LIMITED LIABILITY COMPANY. The Members
agree to the formation of a limited liability company pursuant to the
Act and for that purpose have caused a Certificate of Formation to be
filed with the Secretary. The rights and duties of the Members shall be
as provided in the Act, except as modified by this Agreement. For and
in consideration of the mutual covenants herein contained and for other
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Members executing this Agreement hereby agree
to the terms and conditions of this Agreement, as it may from time to
time be amended according to its terms. To the extent any provision of
this Agreement is prohibited or ineffective under the Act, this
Agreement shall be considered amended to the smallest degree possible in
order to make this Agreement effective under the Act. In the event the
Act is subsequently amended or interpreted in such a way as to make any
provision of this Agreement that was formerly invalid valid, such
provision shall be considered to be valid from the effective date
of such interpretation or amendment.
SECTION 2. NAME. The business of the Company shall be
conducted under the name "JMB 245 Park Avenue Holding Company, LLC."
SECTION 3. DEFINITIONS.
For purposes of this Agreement, unless the context clearly
indicates otherwise, the following terms shall have the following
meanings:
(a) "Act" means the Delaware Limited Liability Company Act,
Delaware Code Title 6, Sections 18.101 et seq., as amended from time to
time.
(b) "Affiliate" means, with reference to any Person, any other
Person that Controls, is Controlled by or is under common Control with
such Person.
(c) "Agreement" means this Limited Liability Company Agreement,
as amended, modified or supplemented from time to time.
(d) "Capital Account" means, with respect to each Member, the
account established on the books and records of the Company for such
Member. Each Member's Capital Account shall initially equal the value
of the Capital Contribution to the Company made by the Member as set
forth on Schedule I attached hereto. During the term of the Company,
each Member's Capital Account shall be (i) increased by the amount of
(w) income and gain allocated to the Member and (x) any cash or property
(net of any liability secured by such property that the Company is
considered to assume or take subject to) subsequently contributed by the
Member to the Company, and (ii) decreased by the amount of (y) loss and
deduction allocated to the Member and (z) all cash and property (net of
any liability secured by such property that the Member is considered to
assume or take subject to) distributed to the Member, and shall
otherwise be kept in accordance with applicable United States Treasury
Regulations promulgated under Section 704(b) of the Code.
(e) "Capital Contribution" means a contribution of cash or other
property to the Company. Contributed property shall be valued at fair
market value, net of any liabilities assumed to which the contributed
property is subject.
(f) "Code" means the United States Internal Revenue Code of
1986, as amended, modified or rescinded from time to time, or any
similar provision of succeeding law.
(g) "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.
(h) "IRS" means the United States Internal Revenue Service or
any successor entity.
(i) "JMB" means JMB/245 Park Avenue Associates, Ltd. and its
successors and assigns.
(j) "JMB Agreement" means the JMB Transaction Agreement, dated
as of November 21, 1996, pursuant to which, among other things, World
Financial Properties, L.P. provides to JMB and the Company the rights
contemplated in Sections 15.8 and 18.13 of the Reorganization Plan,
attached hereto as Exhibit A.
(k) "Limited Partnership Agreement" means the Amended and
Restated Agreement of Limited Partnership of World Financial Properties,
L.P., dated as of November 21, 1996, by and among the parties thereto,
attached hereto as Exhibit B.
(l) "Majority Interest" means more than 50% of all Membership
Interests outstanding from time to time.
(m) "Manager" means any Person selected to manage the Company in
accordance with Section 14.
(n) "Member" means any Person with a Membership Interest in the
Company.
(o) "Membership Interest" means the percentage interest in the
Company of a Member as set forth opposite such Member's name on Schedule
I attached hereto as amended, modified or supplemented from time to
time.
(p) "Net Cash Flow" means for any period the amount, computed on
a cash basis, equal to:
(i) the sum of (A) all investment income of the Company
and all other cash received by the Company, all without double
counting and (B) any amounts released from Reserves;
decreased by:
(ii) the sum of (A) disbursements of the Company for
expenses and (B) any increase in Reserves.
(q) "Person" means any natural person, corporation, partnership,
association, limited liability company, trust, estate or other
enterprise or entity.
(r) "Reorganization Plan" means the Third Amended 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 United States Bankruptcy Court for the Southern
District of New York, as such Reorganization Plan may be amended from
time to time.
(s) "Reserves" means the reasonable reserves established and
maintained from time to time in amounts reasonably determined by the
Manager to be adequate and sufficient for current and future expenses
and to pay for taxes, insurance, or other costs and expenses incident to
the Company's business or otherwise to provide for the long term goals
of the Company or any other purpose, including reserves for unforeseen
or contingent liabilities, debts or obligations; provided, however, that
prior to the Manager establishing any Reserve in excess of two hundred
thousand dollars ($200,000), the Manager shall be required to obtain the
consent of O&Y (U.S.) Development General Partner Corp. (which consent
shall not be unreasonably withheld).
(t) "Secretary" means the Secretary of State of Delaware.
(u) "Treasury Regulations" means the income tax regulations,
including any temporary regulations, from time to time promulgated under
the Code.
(v) "245 Park Avenue" means 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.
SECTION 4. BUSINESS OF THE COMPANY. The sole purpose of the
Company is to receive, own, hold and dispose of, in accordance with all
applicable provisions of this Agreement, (i) Class A Units of World
Financial Properties, L.P. representing on the date of consummation of
the Reorganization Plan ___% of the total of all Class A Units, (ii)
such Class B Units of World Financial Properties, L.P. (and the Class A
Units into which they may be converted) to be issued to the Company
pursuant to the provisions of Section 2 of the JMB Agreement, (iii) the
rights and benefits evidenced by the provisions of the JMB Agreement (to
the extent such provisions apply to the Company) and (iv) cash
distributions in respect of the Class A Units and any cash proceeds of
the JMB Agreement (to the extent such provisions apply to the Company).
So long as O&Y (U.S.) Development General Partner Corp. shall remain a
Member, the Company shall not acquire any assets in addition to those
specified in clauses (i) through (iv) above and shall not transact any
business other than the business of owning, holding and disposing (in
accordance with all other applicable provisions hereof) of such assets.
SECTION 5. TERM. The term of the Company shall begin upon the
filing of a Certificate of Formation with the Secretary and shall
continue until the earlier of (a) December 31, 2040 or (b) the date as
of which the Company is dissolved in accordance with this Agreement or
by law.
SECTION 6. PRINCIPAL PLACE OF BUSINESS. The principal place of
business of the Company shall be located at 900 North Michigan Avenue,
19th Floor, Chicago, Illinois 60611. A Majority Interest of the Members
may change (on notice to O&Y (U.S.) Development General Partner Corp.),
from time to time, the principal place of business of the Company.
SECTION 7. REGISTERED AGENT; REGISTERED OFFICE. The registered
agent for the service of process shall be The Corporation Trust Company.
The registered office shall be 1209 Orange Street in the City of
Wilmington, County of New Castle. A Majority Interest of the Members
may change, from time to time, the registered agent or office through
appropriate filings with
the Secretary.
SECTION 8. CAPITAL CONTRIBUTIONS; NO WITHDRAWAL OR RESIGNATION.
(a) Initial Capital Contributions. Each Member shall make the
Capital Contribution set forth opposite such Member's name on Schedule I
attached hereto and shall receive the Membership Interest set forth
opposite such Member's name on such Schedule.
(b) Additional Contributions; Interest. No Member shall be
obligated to make any additional Capital Contribution. Upon any
additional Capital Contribution made by any Member, the Membership
Interests of the Members shall be adjusted accordingly and shall be set
forth on an amendment to Schedule I attached hereto. No Member has any
obligation to restore a deficit balance in such Member's Capital Account
or to make any contributions to the Company in order to restore such
deficit balance. No Member shall be paid interest on
any Capital Contribution.
(c) Withdrawal and Resignation; Return of Capital Contribution.
No Member shall be entitled to withdraw or resign as a Member or to
receive any part of such Member's Capital Contribution or any
distribution from the Company in connection therewith.
SECTION 9. DISTRIBUTIONS; OPERATING COVENANTS.
(a) The Manager shall cause the Company to promptly distribute to
each of its Members the Net Cash Flow in accordance with their
respective Membership Interests upon any distribution or other payment
the Company receives with respect to the Class A Units.
(b) So long as O&Y (U.S.) Development General Partner Corp. shall
be a Member, the Manager shall not cause or permit the Company, without
the consent of O&Y (U.S.) Development General Partner Corp., to (i) own
any assets except as provided in Section 4, (ii) incur any indebtedness
or other obligations except for obligations as an Additional General
Partner or a Limited Partner of World Financial Properties, LP and
obligations under the JMB Agreement, (iii) grant or suffer the existence
of any lien, security interest or encumbrance of any kind on or with
respect to its assets (other than as provided in the JMB Agreement and
the Limited Partnership Agreement), (iv) merge, consolidate, sell,
transfer or otherwise dispose of any assets, except for distributions
permitted hereunder and under the JMB Agreement and the Limited
Partnership Agreement, (v) issue any additional securities, (vi) have
any employees or agents, or (vii) enter into any agreement to do any of
the foregoing actions specified in clauses (i) through (vi) above.
SECTION 10. ALLOCATION OF INCOME AND LOSSES.
(a) Allocations. Items of income, gain, loss, deduction, credit
and tax preference to be allocated among the Members shall be allocated
in accordance with their respective Membership Interests.
(b) Change in Membership Interests. If there is a change in any
Member's Membership Interest during any year, allocations among the
Members shall be made in accordance with their Membership Interests in
the Company from time to time during such year in accordance with
Section 706 of the Code using the closing-of-the-books method, except
that depreciation, amortization and similar items shall be deemed to
accrue ratably on a daily basis over the entire year during which the
corresponding asset is owned by the Company for the entire year, and
over the portion of a year after such asset is placed in service by the
Company if such asset is placed in service during the year.
(c) Special Rules. Notwithstanding anything to the contrary in
this Agreement, the debt sharing provisions described in Sections 6.02
and 7.11(e) of the Limited Partnership Agreement shall be complied with
by the Company.
SECTION 11. WITHHOLDING. The Company is authorized to withhold
from distributions to be made to a Member, or with respect to
allocations to a Member, and to pay over to a federal, state or local
government, any amounts required to be withheld pursuant to the Code or
any provisions of any other federal, state or local law. Any amounts so
withheld shall be treated as distributed to such Member pursuant to this
Section 11 for all purposes of this Agreement and shall be offset
against the net amounts otherwise distributable to such Member. The
Company may also withhold from distributions that would otherwise be
made to a Member, and apply to the obligations of such Member, any
amounts that such Member owes to the Company. In addition, any tax
imposed upon the Company resulting from the Membership Interest of any
Member shall be treated as a distribution to such Member and
shall reduce future distributions of Net Cash Flow to such Member.
SECTION 12. BOOKS, RECORDS AND ACCOUNTING.
(a) Books and Records. The Company shall maintain complete and
accurate books and records of the Company's business and affairs in
accordance with generally accepted accounting principles, consistently
applied. The books and records shall be maintained at the principal
place of business of the Company and shall be accessible to the Members
in accordance with the Act.
(b) Fiscal Year; Accounting. The Company's fiscal year shall
initially be the calendar year. The accounting methods and principles
to be followed by the Company shall be selected from time to time by the
Manager.
(c) Reports. The Company shall provide to the Members reports
concerning the financial condition and results of operation of the
Company and the Members' Capital Accounts within ninety five (95) days
after the end of each fiscal year.
(d) Expenses. Prior to incurring any material expenses of
maintaining such books and records (other than expenses associated with
the preparation of the Company's tax returns and other expenses
associated with compliance by the Company of all applicable laws, it
being agreed that such expenses shall not exceed the reasonable cost of
such preparation and compliance) the Manager shall obtain the consent of
each Member, whose consent may not be unreasonably withheld.
SECTION 13. COMPANY FUNDS. The funds of the Company shall be
deposited in such bank or other financial institution account or
accounts, or invested in such interest-bearing or non-interest-bearing
investments, as shall be designated by the Manager. Each Member shall
be given notice as to the name and address of each bank or financial
institution where the Company maintains such accounts. All withdrawals
from any such bank accounts shall be made only by the Manager or by
individuals duly appointed by the Manager.
SECTION14. MANAGEMENT. (a) The Manager. The business of the
Company shall be managed by the Manager. The initial Manager shall be
JMB and shall serve until its resignation in accordance with the terms
hereof. So long as O&Y (U.S.) Development General Partner Corp. shall
be a Member, no Person other than JMB or an Affiliate of JMB shall act
as the Manager without the prior written consent of O&Y (U.S.)
Development General Partner Corp., which consent shall not unreasonably
be withheld.
(b) Resignation. The Manager may resign at any time by giving
written notice to all Members.
(c) Limitations on Powers. The Manager shall not have any
power, right or authority to take any action requiring Member approval
as set forth in this Agreement in the absence of the requisite Member
approval.
(d) Reimbursement. The Manager shall be reimbursed by the
Company for any reasonable out-of-pocket expenses (including expenses
permitted under Section 12(d)) incurred by the Manager on behalf of the
Company.
SECTION 15. MEETINGS.
(a) Meetings of Members. Meetings of Members for any proper
purpose may be called at any time by any Member. Members may
participate in any meeting through the use of a conference telephone or
similar communications equipment by means of which all individuals
participating in the meeting can hear each other, and such participation
shall constitute presence in person at the meeting. The Company shall
give written notice of the date, time, place and purpose of any meeting
to all Members at least ten (10) days and not more than sixty (60) days
prior to the date fixed for the meeting. Notice may be waived by any
Member.
(b) Consent of Members. Any action required or permitted to be
taken at any annual or special meeting of Members may be taken by a
written consent without a meeting, without prior notice and without a
vote. The written consent shall set forth the action so taken and shall
be signed by Members 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 Members entitled to vote thereon were present and voting.
Notice of the taking of action by written consent shall be given to all
Members who did not sign the written consent.
SECTION 16. VOTING.
(a) Members. Except as specifically provided in this Agreement
or as provided in Section 16(c), the affirmative vote or written consent
of a Majority Interest shall decide all matters properly brought before
the Members.
(b) Voting. A Member may vote either in person or by written
proxy or consent signed by the Member or by his duly authorized attorney
in fact.
(c) Actions Requiring Unanimous Member Approval.
Notwithstanding any other provision of this Agreement, the affirmative
vote or written consent of all the Members shall be required to approve
the following matters:
(i) The dissolution or winding up of the Company; and
(ii) Amendments to this Agreement.
SECTION 17. LIMITATION OF LIABILITY AND INDEMNIFICATION.
(a) Limitation of Liability. The debts, obligations and
liabilities of the Company, whether arising in contract, tort or
otherwise, shall be solely the debts, obligations and liabilities of the
Company, and no Member or Manager shall be obligated personally for any
such debt, obligation or liability of the Company solely by reason of
being a Member or Manager.
(b) Indemnification. The Company shall indemnify, in accordance
with and to the full extent now or hereafter permitted by law, any
Person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (including, without
limitation, an action by or in the right of the Company) by reason of
the fact that such Person is or was a Member, Manager or officer of the
Company against any liabilities, expenses (including, without
limitation, attorneys' fees and expenses and any other costs and
expenses incurred in connection with defending such action, suit or
proceeding), judgments, fines and amounts paid in settlement actually
and reasonably incurred by such Person in connection with such action,
suit or proceeding.
(c) Expenses. Expenses (including, without limitation,
reasonable attorneys' fees and expenses) incurred by a Member, Manager
or officer of the Company in defending a civil, criminal, administrative
or investigative action, suit or proceeding shall be paid by the Company
in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of the Member (which
shall be in form and substance reasonably satisfactory to all other
Members) , Manager or officer to repay such amount if it shall
ultimately be determined that such Member, Manager or officer is not
entitled to be indemnified by the Company under this Section 17 or under
any other contract or agreement between such Member, Manager or officer
and the Company. Such expenses (including reasonable attorneys' fees)
incurred by employees or agents of the Company or Persons serving other
entities at the request of the Company may be so paid upon the receipt
of the aforesaid undertaking and such terms and conditions, if any, as
the Manager deems appropriate.
(d) Not Exclusive. The indemnification and advancement of
expenses provided by this Section 17 shall not be deemed exclusive of
any other rights to which those seeking indemnification or advancement
of expenses may be entitled under any by-law, agreement, vote of Members
or otherwise, both as to action in such Person's official capacity and
as to action in another capacity while holding such office, and shall
continue as to a Person who has ceased to be a Member, Manager, or
officer and shall inure to the benefit of the successors, assigns,
heirs, executors and administrators of such a Person.
(e) Insurance. The Company may purchase and maintain insurance
on behalf of any Person who is or was a Member, Manager or officer of
the Company, against any liability asserted against such Person and
incurred by such Person in any such capacity, or arising out of such
Person's status as such, whether or not such Person would be entitled to
indemnity against such liability under the provisions of this Section
17.
(f) Reimbursement. Notwithstanding any contrary provision set
forth above, no indemnification shall be provided by the Company in
respect of liabilities or expenses that arise out of (1) any material
breach by a Member of its obligations under this Agreement, (ii) any
grossly negligent acts or omissions by a Member or (iii) any intentional
wrongful acts by a Member.
SECTION 18. ASSIGNMENT OF MEMBERSHIP INTERESTS AND NEW MEMBERS.
(a) Assignment. A Membership Interest shall only be assignable,
in whole or in part, upon compliance with the following provisions of
this Agreement. An assignment of a Membership Interest shall not
entitle the assignee to become or to exercise any rights or powers of a
Member until such assignee is admitted as a Member in accordance with
this Agreement. As a condition to any assignment of a Membership
Interest, the Member must notify the assignee and the Company in writing
of all obligations of such Member for liabilities relating to the
Company and this Agreement, including any obligations to make
contributions to the Company. An assignment shall entitle the assignee
only to receive such distributions, to share in such profits and to
receive such allocations of income, gain, loss, deduction, credit, tax
preference and similar items to which the assignor was entitled to the
extent assigned.
(b) Limitations on Assignment. No Member may assign any
Membership Interest (or any portion thereof or interest therein), and no
Person shall become a Member, unless in the opinion of counsel selected
by or acceptable to the Manager, such action will not subject the
Company to federal income taxation as an association taxable as a
corporation, terminate the Company pursuant to Section 708(b) of the
Code or violate applicable state or federal securities laws. Any
attempted action in contravention of this Section 18(b)
shall be void and of no force or effect.
(c) New Members. A Person, including, without limitation, an
assignee of a Membership Interest, shall be admitted as a Member only
upon (i) the written consent of a Majority Interest of the Members,
which consent may be granted or withheld in the sole and absolute
discretion of each Member whose consent is required hereby and (ii) the
execution by such Person of this Agreement. Until the assignee of a
Membership Interest is admitted as a Member, the assignor, subject to
the last sentence of Section 18(a), shall continue to be a Member.
SECTION 19. DISSOLUTION.
The Company shall be dissolved and terminated upon the happening
of the first to occur of any of the following events:
(a) The expiration of the term of the Company;
(b) The approval or written consent of all of the Members for
the dissolution or winding up of the Company;
(c) The death, retirement, withdrawal, resignation, expulsion,
bankruptcy (as defined in Section 18-304 of the Act) or dissolution of a
Member or Members or the occurrence of any other event that terminates
the continued membership of such Member or Members in the Company,
unless within ninety (90) days of such occurrence the Company is
continued by the written consent of a majority of the remaining
Membership Interests, which consent may be granted or withheld in the
sole and absolute discretion of each Member whose consent is required
hereby, and if there is only one (1) Member remaining, the admission of
one (1) or more additional Members; and
(d) Judicial dissolution pursuant to the Act.
SECTION 20. WINDING UP AND DISTRIBUTION OF ASSETS.
(a) Winding Up. If the Company is dissolved, the Manager shall
wind up the affairs of the Company.
(b) Distribution of Assets. Upon the winding up of the Company,
the Manager shall pay or make reasonable provision to pay all claims and
obligations of the Company, including all costs and expenses of the
liquidation and all contingent, conditional, or unmatured claims and
obligations that are known to the Manager but for which the identity of
the claimant is unknown. If there are sufficient assets, such claims
and obligations shall be paid in full and any such provision shall be
made in full. If there are insufficient assets, such claims and
obligations shall be paid or provided for according to their priority
and, among claims and obligations of equal priority, ratably to the
extent of assets available therefor. Any remaining assets shall be
distributed as follows:
(i) First, to creditors in the order of priority as
provided by law; and
(ii) Second, to Members in accordance with their respective
positive Capital Accounts, after giving effect to all contributions,
distributions and allocations for all periods.
SECTION 21. CONFLICT OF INTEREST. No Member shall be required to
act hereunder as its sole and exclusive business activity, and any
Member may have other business interests and engage in other activities
in addition to those relating to the Company. Neither the Company nor
any Member shall have any right by virtue of this Agreement in or to any
other such business interests or activities or to the income or proceeds
derived therefrom, including, without limitation, the management fees
payable to JMB pursuant to Section 7 of the JMB Agreement. No
transaction between a Member and the Company shall be voidable solely
because a Member has a direct or indirect interest in the transaction if
either the transaction is fair and reasonable to the Company, or the
percentage or number of disinterested Members, as required under this
Agreement or applicable law, authorize, approve or ratify the
transaction. Notwithstanding the preceding sentence, the parties hereto
agree that the transactions contemplated by Section 23 of this Agreement
shall not be voidable and shall be considered fair and reasonable to the
Company.
SECTION 22. TAXATION.
(a) Status of the Company. The Members acknowledge that this
Agreement creates a partnership for federal and state income tax
purposes (and only for such purposes), and hereby agree not to elect to
be excluded from the application of Subchapter K of Chapter 1 of
Subtitle A of the Code or any similar state statute.
(b) Tax Elections. JMB shall have full and exclusive authority
over all Company tax matters, including, without limitation, (i) with
respect to Section 7.11(e) of the Limited Partnership Agreement, the
election by JMB to request that World Financial Properties, L.P. adopt
the "remedial allocation method" under Treasury Regulation Section
1.704-3 with respect to 245 Park Avenue; and (ii) any election under
Section 754 of the Code and the Treasury Regulations thereunder to
adjust the basis of the Company assets under Section 734(b) or 743(b) of
the Code and a corresponding election under the applicable sections of
state and local law. The Tax Matters Member (as defined in Section
22(d)) shall have the authority to make all other Company elections
permitted under the Code, including elections of methods of
depreciation. Notwithstanding anything to the contrary herein, any
other Member shall have the right to confer with the Tax Matters Member
from time to time regarding the tax affairs of the Company and shall be
entitled to reasonable notice of any tax election made by the Company.
(c) Company Tax Returns. The Manager shall cause the necessary
federal income and other tax returns and information returns for the
Company to be prepared. Each Member shall provide such information
about itself, if any, as may be needed by the Company for purposes of
preparing such tax returns and information returns. The Manager shall
deliver to each Member within ninety (90) days after the end of each
fiscal year a copy of the federal income tax returns for the Company as
filed with the appropriate taxing authorities, and upon the written
request of any Member, a copy of any state and local income tax return
as filed.
(d) Tax Audits.
(i) JMB shall be the Company's tax matters partner within
the meaning of Section 6231(a)(7) of the Code (the "Tax Matters Member")
with respect to federal income tax audits. If at any time the Tax
Matters Member cannot or elects not to serve as the Tax Matters Member,
is removed by the Members as the Tax Matters Member or ceases to be a
Member, a Majority Interest of the Members shall select another Member
to be the Tax Matters Member. The Tax Matters Member, as an authorized
representative of the Company, shall direct the defense of any claims
made by the IRS to the extent that such claims relate to the adjustment
of Company items at the Company level. The Tax Matters Member shall
promptly deliver to each Member a copy of any notice of beginning of
administrative proceedings or any report explaining the reasons for a
proposed adjustment received from the IRS relating to or potentially
resulting in an adjustment of Company items. The Tax Matters Member
shall, unless a Majority Interest consents to the contrary, diligently
and in good faith contest any proposed adjustment of a Company item that
principally affects the Members at the administrative and judicial
levels, including, if appropriate or if requested by a Majority
Interest, appealing any adverse judicial decision, and shall consider in
good faith any suggestions made by any Member or its counsel regarding
the conduct of such administrative or judicial proceedings. The Tax
Matters Member shall keep each Member advised of all material
developments with respect to any proposed adjustment that come to its
attention, including, without limitation, the scheduling of all
conferences and substantive telephone calls with the IRS. Each Member
shall be entitled, at its own expense, to attend all meetings with the
IRS and to review in advance any material written information
(including, without limitation, any pleadings, memoranda or similar
items) to be submitted to the IRS. Without first obtaining the consent
of a Majority Interest, the Tax Matters Member shall not, with respect
to any proposed adjustment of a Company item that materially and
adversely affects any Member, a. enter into a settlement agreement that
purports to bind Members other than the Tax Matters Member (including,
without limitation, any stipulation consenting to an entry of decision
by any tax court), or b. enter into an agreement or stipulation
extending the statute of limitations.
(ii) The Company shall promptly deliver to each Member a
copy of all notices, communications, reports or writings of any kind
with respect to income or similar taxes received from any state or local
taxing authority relating to the Company that might materially and
adversely affect each Member, and shall keep such Members advised of all
material developments with respect to any proposed adjustment of Company
items that come to its attention.
(iii) Each Member shall continue to have the rights
described in this Section 22(d) with respect to tax matters relating to
any period during which it was a Member, whether or not it is a Member
at the time of the tax audit or contest.
SECTION 23. JMB'S RIGHTS. Notwithstanding anything to the
contrary in this Agreement, (i) pursuant to Section 9.05 of the Limited
Partnership Agreement, JMB, in its sole and absolute discretion, shall
have the right to cause the Company to distribute to its Members, in
proportion to their respective Membership Interests, the "Class A Units"
(as defined in the Limited Partnership Agreement) owned by the Company,
(ii) JMB, in its sole and absolute discretion, shall have the right to
cause the Company to become a "Tag-Along Partner" (as defined in the
Limited Partnership Agreement) or otherwise make any decision pertaining
to or incidental to any rights granted to the Company under Section 9.08
of the Limited Partnership Agreement; (iii) JMB, in its sole and
absolute discretion, shall have the right to exercise, on behalf of the
Company, any of the rights granted to the Company pursuant to the JMB
Agreement; and (iv) JMB, in its sole and absolute discretion, shall have
the right to exercise, on behalf of the Company, any of the rights
granted to the Company pursuant to the Limited Partnership Agreement.
SECTION 24. MISCELLANEOUS.
(a) Governing Law. This Agreement and any controversies, claims
or arbitration hereunder shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to its
conflict of law rules.
(b) Binding Effect. Except as otherwise specifically provided
herein, this Agreement shall be binding upon and inure to the benefit of
the parties and their legal representatives, heirs, administrators,
executors, successors and assigns.
(c) Pronouns and Number. Wherever from the context it appears
appropriate, each term stated in either the singular or the plural shall
include the singular and the plural, and pronouns stated in either the
masculine, the feminine or the neuter gender shall include the
masculine, feminine and neuter.
(d) Captions. Captions or section headings contained in this
Agreement are inserted only as a matter of convenience and in no way
define, limit or extend the scope or intent of this Agreement or any
provision hereof.
(e) Enforceability. If any provision of this Agreement, or the
application of the provision to any Person or circumstance shall be held
invalid, the remainder of this Agreement, or the application of that
provision to Persons or circumstances other than those with respect to
which it is held invalid, shall not be affected thereby.
(f) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same instrument.
(g) Notices. Any notices permitted or required under this
Agreement shall be deemed to have been given when delivered in Person or
by courier or three (3) days after being deposited in the United States
mail, postage prepaid, and addressed to the Company at its principal
place of business and to any Member at the address shown below, or to
such other address of which any party shall notify the other parties
hereto, in accordance with the terms hereof.
If to JMB:
JMB/245 Park Avenue Associates, Ltd.
900 North Michigan Avenue
19th Floor
Chicago, Illinois 60611
Attn: Stuart C. Nathan
Gary Nickele
with a copy to:
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
Attn: Martin Rosenstein, Esquire
Facsimile: (312) 701-7711
If to O&Y (U.S.) Development General Partner Corp.:
c/o World Financial Properties, L.P.
One Liberty Plaza
New York, New York 10006
Attn: Chief Financial Officer
Facsimile: (212) 417-7195
with a copy to:
Cahill Gordon & Reindel
Eighty Pine Street
New York, New York 10005
Attn: Richard J. Sabella
Facsimile: (212) 269-5420
(h) Entire Agreement; Amendment. This Agreement constitutes the
entire agreement between the parties hereto with respect to the matters
set forth herein and supersedes all prior understandings or agreements
between the parties with respect to such matters. This Agreement,
including all schedules hereto, may only be amended, modified or
supplemented by written agreement of all parties to this Agreement. In
addition, amendments may be made to this Agreement in order to enable
all or a portion of the Company to qualify as a partnership for Federal
income tax purposes under applicable regulations on the classification
of entities as partnerships or corporations under the Code adopted as
final regulations after the date hereof, and to the extent that such
regulations eliminate or modify the need therefor, to modify or
eliminate existing provisions of this Agreement.
(i) Further Assurances. The Members shall execute and deliver
such further instruments and do such further acts and things as may be
required to carry out the intent and purposes of this Agreement. Each
Member shall execute all such certificates and other documents and shall
do all such filing, recording, publishing, and other acts as are
required to comply with the requirements of law for the formation and
operation of the Company and to comply with any laws, rules, and
regulations relating to the acquisition, operation, or holding of the
property of the Company.
(j) Third Parties. Nothing in this Agreement, whether express
or implied, shall be construed to give any Person other than a Member or
the Company any legal or beneficial or other equitable right, remedy or
claim under or in respect of this Agreement, any covenant, condition,
provision or agreement contained herein or the property of Company.
(k) Facsimile Signatures. The facsimile signature of any
Manager or Member may be used at all times and for all purposes in place
of an original signature.
(l) Reliance upon Books, Reports and Records. Unless he has
knowledge concerning the matter in question which makes his reliance
unwarranted, each Manager and Member shall, in the performance of his
duties hereunder, be entitled to rely on information, opinions, reports
or statements, including, without limitation, financial statements and
other financial data, if prepared or presented by one or more employees
of the Company or by legal counsel, accountants or other Persons as to
matters such Manager or Member reasonably believes to be within such
Person's professional or expert competence.
(m) Time Periods. In applying any provision of this Agreement
which requires that an act be done in or not done in a specified number
of days prior to an event or that an act be done during a period of a
specified number of days, calendar days shall be used, the day of the
doing of the act shall be excluded, and the day of the event shall be
included.
(n) Waiver. No failure by any Manager or Member to insist upon
the strict performance of any covenant, duty, agreement or condition of
this Agreement or to exercise any right or remedy consequent upon a
breach thereof shall constitute waiver of any such breach or any other
covenant, duty, agreement or condition.
IN WITNESS WHEREOF, the undersigned Members have executed
this Agreement as of the date first set forth above.
JMB/245 PARK AVENUE ASSOCIATES, LTD.
By: JMB PARK AVENUE, INC.,
a general partner
By: ______________________
Name:__________________
Title:_________________
O&Y (U.S.) DEVELOPMENT GENERAL
PARTNER CORP.
By: ___________________________
Name:______________________
Title:_____________________
<TABLE>
SCHEDULE I
MEMBERS
<CAPTION>
MEMBER'S MEMBER'S
CAPITAL MEMBERSHIP
NAME AND ADDRESS CONTRIBUTION INTEREST
<S> <C> <C>
JMB/245 Park Avenue
Associates, Ltd. $30,000,000 99%
900 North Michigan Avenue
19th Floor
Chicago, Illinois 60611
O&Y (U.S.) Development $ 303,030 1%
General Partner Corp.
c/o World Financial
Properties, L.P.
One Liberty Plaza
New York, New York 10006
Attn: Chief Financial Officer
Facsimile: (212) 417-7195
<FN>
</TABLE>
EXHIBIT A
[JMB AGREEMENT]
EXHIBIT B
[LIMITED PARTNERSHIP AGREEMENT]
