Exhibit (d)(i)
AGREEMENT OF LIMITED PARTNERSHIP
OF
FIRST WILKOW VENTURE
This Agreement of Limited Partnership made at Chicago. Illinois as of the
8th day of December, 1972 by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇, residing at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇ ▇▇▇▇▇▇, residing at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇; and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, residing at ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the "General Partners") and all the other
parties who may execute this Agreement and whose signatures appear hereon or on
a counterpart hereof (the "Limited Partners").
ARTICLE I
FORMATION OF LIMITED PARTNERSHIP
The parties hereby enter into a limited partnership under the provisions of
the Uniform Limited Partnership Act of the State of Illinois, and the rights and
liabilities of the Partners shall be as provided in that Act except as herein
otherwise expressly provided.
ARTICLE II
NAME
The business of the partnership shall be conducted under the firm name of
FIRST WILKOW VENTURE, or such other name as the General Partners shall hereafter
designate in writing to the Limited Partners.
ARTICLE III
DEFINITIONS
"Agreement" means this Agreement of Limited Partnership, as amended,
modified or supplemented from time to time.
"General Partners" means ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, and any other person who may become a General Partner pursuant to the
provisions of Section 15.11 hereof.
"Limited Partners" means parties who may execute this Agreement or a
counterpart thereof, and any other party admitted as a substituted Limited
Partner pursuant to the provisions of Section 16.7 hereof.
"Participating Percentage" means, as to each holder of a Unit or Units, at
any particular time, the percentage determined by dividing the total number of
Units held by such party by the total number of Units outstanding hereunder and
multiplying the quotient thereof by one hundred (100).
"Partners" means all General Partners and all Limited Partners, where no
distinction is required by the context in which the term is used herein.
"Partnership Unit" or "Unit" means one of the equal parts into which the
capital of the Partnership shall be divided.
ARTICLE IV
PURPOSE
Section 4.1 The purpose of the Partnership is to acquire the total
interest in twenty-one Terminating Partnerships and to carry on the
business and operations of such Partnerships. By such acquisitions the
Partnership will acquire legal title, or such other interest as is now
possessed by the Terminating Partnerships in and to all the properties now
held by them. The names and descriptions of the Terminating Partnerships
and their properties are set forth in a schedule captioned "Description and
Valuation of Terminating Partnerships", a copy of which is annexed hereto
as Exhibit I. The General Partners have determined that the present value
of the Units in the Terminating Partnerships for exchange purposes is as
set forth in Exhibit I.
Section 4.2 The proposed exchange of interests in the Terminating
Partnerships for interests herein is described and set forth in the
Prospectus of the Partnership, forming a part of the Registration Statement
of the Partnership filed with the Securities and Exchange Commission, a
copy of which Prospectus is to be furnished to all holders of Units in each
Terminating Partnership in connection with the offer to exchange Units of
the Partnership for such Units.
ARTICLE V
NAMES AND ADDRESSES OF PARTNERS
The names, addresses and capital contributions of the Partners and the
number of Partnership Units owned by each are set forth in Schedule A attached
hereto and incorporated herein by reference.
ARTICLE VI
TERM
The term of the Partnership shall begin when a Certificate of Limited
Partnership is duly filed in the office of the Clerk of the County of ▇▇▇▇,
State of Illinois, but it shall not commence business until a registration
statement for the offer of the Partnership Units hereinafter described shall
have been filed with the Securities and Exchange Commission and shall have
become effective. The Partnership shall continue thereafter for a period of
twenty (20) years, unless sooner terminated in accordance with the provisions
hereof.
9
ARTICLE VII
PRINCIPAL PLACE OF BUSINESS
The principal place of business of the Partnership shall be ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The General Partners may from time to
time change the principal place of business, and in such event the General
Partners shall notify the Limited Partners in writing within twenty (20) days of
the effective date of such change. The General Partners may in their discretion
establish additional places of business of the Partnership.
ARTICLE VIII
CAPITAL AND CONTRIBUTIONS
Section 8.1 The Partnership shall have initial capital of $20,638,050,
divided into 206,380 1/2 Units of One Hundred ($100.00) Dollars each. Each
of the Partners will contribute to the capital of the Partnership at the
rate of One Hundred ($100.00) Dollars per Unit by assigning Units of
ownership which he holds in various Terminating Partnerships. Each Partner
will become the owner of a specified number of Units and is entitled to a
Certificate of Ownership for such Units to be issued in accordance with the
provisions hereof.
Section 8.2 The Partnership will acquire the various Partnership Units
in the Terminating Partnerships in accordance with the value of such
Partnerships as set forth in the annexed Schedule of Exchange Values, and
in exchange therefor will issue its Partnership Units on the basis of one
(1) Unit for each One Hundred ($100.00) Dollars of Units acquired. For
example:
A Partner contributing five (5) Units in Partnership A, valued at Nine
Hundred ($900.00) Dollars per Unit, and two (2) Units in Partnership B,
valued at One Thousand ($1,000.00) Dollars per Unit, a total of Six
Thousand Five Hundred ($6,500.00) Dollars, will receive sixty-five (65)
Units in the Partnership.
Section 8.3 The General Partners are authorized to issue additional
Units from time to time, and to admit the parties to whom such additional
Units are issued as Limited Partners in the Partnership, in order to raise
additional capital for the Partnership or for any other proper Partnership
purpose; provided that the total Units of the Partnership shall not exceed
250,000 Units at any one time outstanding. The General Partners shall have
sole and complete discretion in determining the consideration and terms and
conditions with respect to any such future issuance of Units, and the
General Partners are authorized and directed to do all things which they
deem to be necessary or advisable in connection therewith.
Section 8.4 No Partner shall be required to contribute to the capital
of the Partnership anything of value other than the Units of Terminating
Partnerships set forth as his contribution opposite his signature hereto.
10
ARTICLE IX
ALLOCATION OF PROFITS AND LOSSES
The net profits or losses of the Partnership for each fiscal quarter, after
deduction of management fees and ordinary and necessary expenses of operation
will be allocated among the record holders of Units at the end of such fiscal
quarter in proportion to their respective Participating Percentages, without
adjustment for any assignments of Units during such quarter, and without regard
to the date, amount or recipient of any distributions which may have been made
with respect to such Units.
ARTICLE X
DISTRIBUTION OF FUNDS
Section 10.1 Funds arising or realized from sources (a), (b), (c) and
(d) described below are to be allocated or distributed as provided in
paragraphs 10.2 and 10.3 hereof:
(a) All earnings of the Partnership as determined in accordance with
generally accepted accounting principles applied on a consistent basis,
without any deduction for depreciation but (i) after deducting payments
made in reduction of the principal of any mortgage on real property; and
(ii) after setting aside such cash reserves for replacements and repairs as
the General Partners deem appropriate;
(b) All funds from the sale of any part or all of the property owned
by the Partnerships, except as otherwise permitted by the provisions of
paragraph 10.3(c) below;
(c) All funds resulting from the placement of any mortgage or
mortgages on Partnership property and the refinancing of any such mortgage
or mortgages to the extent, and only to the extent, that such funds, in the
opinion of the General Partners, are not otherwise needed in the ordinary
course of the business of the Partnership;
(d) All other funds from whatever source, which in the opinion of the
General Partners are not otherwise needed in the ordinary course of the
business of the Partnership and which the General Partners agree to
distribute.
Section 10.2 All distributions of any funds shall be allocated and
distributed to each of the Partners in accordance with their respective
Participating Percentages, distributions to be ad-ministered is provided in
paragraph (b) of Section 10.3.
Section 10.3 (a) Losses sustained by the Partnership are to be
allocated and borne by each Partner in accordance with their respective
Participating Percentages, provided, however, that no Limited Partner shall
in any event be liable for any losses in excess of his original capital
contribution;
(b) As funds are available in the Partnership bank account or
accounts, and to the extent that the General Partners deem it unnecessary
for such funds to be retained by
11
the Partnership, such funds shall, upon the determination of the General
Partners, be distributed to all of the Partners in the manner set forth in
Section 10.2;
(c) To the extent that the General Partners deem it necessary and in
the best interest of the Partnership, funds obtained from the sale of
partnership property or interests may be retained for the purpose of other
partnership property or interests, each Partners capital share therein
remaining unchanged from that established in accordance with the provisions
of Article VIII hereof; provided, however, that new or other properties or
interests in new or other properties (whether acquired from funds realized
from the sale of partnership properties or from, otter funds) shall not be
acquired by the Partnership if the holders of at least 20% of outstanding
partnership Units object thereto in writing;
(d) All sums at any time distributable to the Partners shall be
distributed in quarter-annual installments or more frequently, if the
General Partners so elect.
ARTICLE XI
BOOKS OF ACCOUNT, RECORDS AND REPORTS
Section 11.1 Proper and complete records and books of account shall be
kept by the General Partners in which shall be entered fully and accurately
all transactions and other matters relative to the Partnership's business
as are usually entered into records and books of account maintained by
persons engaged in business of a like character. The Partnership books and
records shall be kept on the accrual basis in accordance with generally
accepted accounting principles, consistently applied. The books and records
shall be open to the reasonable inspection and examination of the Partners
or their duly authorized representatives during reasonable business hours.
The General Partners shall furnish a list of names and addresses of all
Limited Partners to any Limited Partner who requests such a list in writing
for any proper purpose.
Section 11.2 No later than 90 days after the end of each fiscal year
of the Partnership, the General Partners shall furnish to each Limited
Partner a report of the business and operations of the Partnership during
such year which report shall constitute the accounting of the General
Partners for such year. Such report shall contain a copy of the annual
financial statement of the Partnership showing the Partnership's profit or
loss for the year and the allocation thereof among the holders of the
Units, which statement shall be authenticated by the General Partners and
shall otherwise he in such form and have such content as the General
Partners deem proper.
Section 11.3 The profits of the Partnership shall be allocated to the
capital account of each Partner in accordance with their respective
Participating Percentages.
12
Section 11.4 The losses of the Partnership shall he charged first to
any undivided profits allocable to each Partner and then to the capital
account of each Partner in accordance with their respective Participating
Percentages.
Section 11.5 In the case of a distribution of property made in the
manner provided in Section 734 of the Internal Revenue Code of 1954, or in
the case of a transfer of any interest in the Partnership permitted by this
agreement made in the manner provided in Section 743 of such Code, the
General Partners, on behalf of the Partnership, may file an election under
Section 754 of the Code in accordance with the procedures set forth in the
applicable Treasury regulations, and each Partner will upon request supply
the information necessary to properly give effect to such election.
ARTICLE XII
FISCAL YEAR
The fiscal year of the Partnership shall be determined by the General
Partners.
ARTICLE XIII
PARTNERSHIP FUNDS
Section 13.1 The General Partners will jointly open and maintain one
or more bank accounts in the name of the Partnership and in the name of its
operating entities, as they may deem necessary, in which accounts shall be
deposited the funds of the Partnership; the funds at any time in such
account or accounts shall be used exclusively for the business purposes of
the Partnership.
Section 13.2 Withdrawals from any Partnership bank account shall be
made only upon the signatures of the General Partners, or such other person
or persons as they may from time to time designate.
Section 13.3 Any advance of money to the Partnership by any of the
General or Limited Partners shall constitute a loan to the Partnership and
shall he repaid with interest.
ARTICLE XIV
STATUS OF LIMITED PARTNERS
Section 14.1 The Limited Partners shall not participate in the
management or control of the Partnership's business nor shall they transact
any business for the Partnership, nor shall they have the power to act for
or bind the Partnership, said powers being vented solely and exclusively in
the General Partners.
Section 14.2 No Limited Partner shall have any personal liability
whatever, either to the Partnership, to any of the Partners or to the
creditors of the Partnership,
13
for the debts of the Partnership or any of its losses except to the extent
of his rights and interests in and to the Partnership assets.
Section 14.3 The death or legal incapacity of a Limited Partner shall
not cause a dissolution of the Partnership, but the rights of such Limited
Partner to share in the profits and losses of the Partnership, to receive
distributions of Partnership funds and to assign a Partner-ship interest
shall, on the happening of such an event, devolve on his personal
representatives, or in the event of the death of one whose limited
partnership interest is held in joint tenancy, shall pass to the surviving
joint tenant, subject to the terms and conditions of this Agreement, and
the Partnership shall continue as a limited partnership as if such Limited
Partner had not died or become incompetent. However, in no event shall such
personal representatives or surviving joint tenant become a substituted
Limited Partner, except with the consent of the General Partners in
accordance with the provisions of Section 15.2 hereof.
ARTICLE XV
GENERAL PARTNERS
Section 15.1 The General Partners shall have exclusive authority to
manage and control the business and affairs of the Partnership. Pursuant to
the foregoing, the General Partners shall have all of the rights and powers
of a general partner as provided in the Illinois Uniform Limited
Partnership Act and as otherwise provided by law, and any action taken by
the General Partners shall constitute the act of and serve to bind the
Partnership. In dealing with the General Partners acting on behalf of the
Partnership, no person shall be required to inquire into the authority of
such Partners to bind the Partnership. While it has been agreed among the
Partners that the powers of management are to be exclusively in the General
Partners, it is recognized that the act of any individual General Partner,
including the execution in the Partnership name of any instrument, for
apparently carrying on the business of the Partnership in the usual way,
will bind the Partnership unless the person with wham such Individual
General Partner is dealing has knowledge of his lack of authority.
Section 15.2 The General Partners are hereby granted the right, power
and authority to do on behalf of the Partnership all things which, in their
sole judgment, are necessary or desirable to carry out the aforementioned
duties and responsibilities, including, but not limited to, the right,
power and authority: to incur all reasonable expenditures; to employ and
dismiss from employment any and all employees, agents, independent
contractors, attorneys and accountants, subject to the provisions of
Section 15.7 hereof; to sell, exchange, or grant an option for the sale or
exchange of, all or any portion of the real and personal property of the
Partnership; to lease all or any portion of any property for any purpose
and without limit as to the term thereof; to borrow money and as security
therefor to mortgage in grant security interests in all or any part of any
property; to prepay in whole or in part, refinance, modify, or extend any
indebtedness; to do any and all of the foregoing at such price, rental or
amount, for cash, securities or other property and upon such terms as the
General Partners deem proper; to place record title to any property in its
name or in
14
the name of a nominee or a trustee; to adjust, compromise, settle or refer
to arbitration any claim against or in favor of the Partnership or any
nominee, and to institute, prosecute and defend any legal proceeding
relating to the business or property of the Partnership; to delegate all or
any portion of the powers granted hereunder to one or more
attorneys-in-fact; and to execute, acknowledge and deliver any and all
instruments to effectuate any and all of the foregoing; to repay in whole
or in part, refinance, recast, modify or extend any of the mortgages
affecting any property owned by the Partnership, and in connection
therewith to execute for and on behalf of the Partnership any and all
extensions, renewals, modifications of such mortgages, or to execute new
mortgages in any amount on the properties in lieu of any or all of the said
mortgages, and to execute any and all instruments to carry out the
intentions and the purposes thereof; to enter into agreements providing for
the management of the properties and to do all things reasonably necessary
to protect, conserve and carry on the business of the Partnership. In no
event shall any purchaser, lender, title company or other person be
required to ascertain whether the General Partners have in fact the
necessary authority to act under any and all circumstances, and the failure
of the General Partners to have the necessary authority shall in no way
affect the validity of any sale, conveyance, mortgage, loan, deed of trust,
lease, loan extension or renewal made by the General Partners, either
directly or by directions to a Trustee as the case may be. The General
Partners shall also be empowered to admit an assignee of a Limited
Partner's interest to be a substituted Limited Partner.
Section 15.3 The General Partners will provide their services as
General Partners to the Partnership without compensation, devoting thereto
such time as they in their sole discretion may deem necessary, it being
understood, however, that the General Partners or any of them may engage in
other business ventures for their on account, and it being further
understood that the General Partners shall have the right to appoint
themselves as managers or consultants as to any or all of the real estate
owned by the Partnership. The General Partners, in their discretion, may
employ, at the expense of the Partnership, any agent or third party to
provide services in respect of management of any of the Partnership
properties.
Section 15.4 The General Partners, to the extent that they so appoint
themselves or any one or more of them as such managers or consultants shall
he entitled to reasonable compensation for their services. The General
Partners shall have the further right to appoint any one of them as
attorney or legal counsel and, to the extent that one of them is so
appointed, he shall be entitled to reasonable compensation for his
services.
Section 15.5 The General Partners shall not be liable, responsible or
accountable in damages or otherwise to the Partnership or any Limited
Partner for any act or failure to act on behalf of the Partnership within
the scope of the authority conferred on the General Partners by this
Agreement or by law unless a court of competent jurisdiction has rendered a
final and no longer appealable judgment that such act or emission was
performed or omitted fraudulently or in bad faith or constituted wanton and
willful misconduct or gross negligence.
15
Section 15.6 The Partnership shall indemnify and hold harmless each
General Partner and the agents of each of them (herein the "Indemnified
Parties"), from and against any loss, expense, damage or injury suffered or
sustained by him by reason of any act, omission or alleged act or omission
arising out of his activities on behalf of the Partnership or in
furtherance of the interests of the Partnership, including, but not limited
to, any judgment award, settlement, reasonable attorneys' fees and other
costs and expenses incurred in connection with the defense of any actual or
threatened action, proceeding or claim and including any payments made by
the General Partners to any of its officers or directors pursuant to an
indemnification agreement no broader than this Section 15.6; provided that
the act, omission or alleged act or omission upon which such actual or
threatened action, proceeding or claim is based was not performed or
omitted fraudulently or in bad faith or as a result of wanton and willful
misconduct or gross negligence by such Indemnified Party.
Section 15.7 Whenever the General Partners shall deem it advisable to
sell assets owned by the Partnership consisting of real estate or any
interest therein (including leaseholds, contracts to purchase, land, trusts
and beneficial interests in land trusts) they shall first submit the
proposed to sell to all of the Partners. No sale of such assets shall be
made unless authorized in writing by Partners owning at least sixty (60%)
percent of the outstanding Partnership Units. If at any time Partners
owning at least sixty (60%) percent of the outstanding Partnership Units
shall, at their own initiative, determine that it is advisable to sell all
of the assets owned by the Partnership and shall so direct the General
Partners in writing, then such assets shall be sold pursuant to such
direction. There shall be no rights of the holders of Units comprising less
than sixty (60%) percent of the outstanding Units ("minority Partners") to
object to such sale, to have the value of their Units appraised or to
otherwise situate themselves differently than the owners of such sixty
(60%) percent of the outstanding Units ("majority Partners"), said minority
Partners hereby authorizing and empowering the majority Partners, as
attorneys-in-fact for the said minority Partners, to execute on behalf of
the minority Partners any and all papers and documents which may be
necessary to consummate such proposed sale and to take all reasonably
necessary steps.
Section 15.8 Anything in this Agreement contained to the contrary
notwithstanding, the General Partners are hereby authorized to waive any or
all restrictions imposed by this Agreement on the encumbrance, mortgaging
or other hypothecation of Partnership Units or any interest therein. Any
waiver in the discretion of the General Partners may be confined to a
single or particular such transaction or may be a continuing waiver
applicable to any and all such transactions whenever made and by whomever
made, of all or any part of Partnership Units or interests therein,
including, without limitation of the generality of the foregoing,
transactions made to take effect at any time in the future by any person,
firm or corporation entitled to enter into such transactions relative to
such Units or such interests, or any part thereof.
Section 15.9 The General Partners are authorized and empowered to take
and hold legal title to any properties or leasehold interests in any
properties in the
16
name of the Partnership or in whatever manner they shall determine to be in
the best interest of the Partnership. Without limiting the foregoing grant
of authority, the General Partners may arrange to have titles and other
interests taken and held by Trustees or nominees selected by them.
Section 15.10 In the event titles or other interests are taken and
held in Trust, the Trustees shall have the power and authority, whenever
directed in writing by the General Partners, to lease, sell, mortgage,
convey or otherwise deal with such titles and interests, and to borrow
money in their capacity as Trustees; to secure loans by mortgage or deed of
trust upon such property or properties; to renew or extend any and all such
loans and to convey property or properties by deed, mortgage, deed of
trust, or otherwise, without any liability on the part of any purchaser,
lender or title company handling the transaction to see to the proper
application of the purchase money or money loaned. In no event shall any
purchaser, lender, title company or any other person be required to
ascertain whether the General Partners have in fact been duly authorized or
to ascertain whether the Trustees have received proper written directions
and satisfied themselves that the General Partners were duly authorized or
to ascertain whether the Trustees have received proper written directions
and satisfied themselves that the General Partners were duly authorized to
give such directions; and the failure of the General Partners to obtain
such authorization, or the failure of the Trustees to determine that the
General Partners have been duly authorized shall in no way affect the
validity of any sale, conveyance, mortgage, deed of trust, lease, loan
extension or renewal made by the General Partners or by the Trustees, as
the case may be. If titles or other interests are taken and held by
Trustees, the Trustees shall act only in their capacity as Trustees, and
not as individuals, with respect to such, and they shall distribute to the
General Partners for the use of the Partnership, the net proceeds of any
transaction after the payment of existing liens, encumbrances and other
charges and expenses of the transaction.
Section 15.11 Additional General Partners may be admitted at any time
by the written consent or affirmative vote of the Partners holding a
majority of the then outstanding Units.
ARTICLE XVI
RESTRICTIONS ON DISTRIBUTION OF UNITS
Section 16.1 No Partner may sell, transfer, assign, pledge, encumber,
mortgage or otherwise hypothecate all or any portion of his Partnership
Units unless the General Partners shall consent unanimously in writing
thereto and no assignee shall have the right to become a substituted
Limited Partner in the place of his assignor except in accordance with the
following provisions: if the General Partners consent unanimously in
writing to the admission of a person as a substituted Limited Partner, and
such person (i) elects to become a substituted Limited Partner by
delivering a written notice, executed and acknowledged by the assignor and
assignee, of such election to the General Partners; (ii) executes and
acknowledge. such other instruments as the General Partners may deem
necessary or advisable to effect the
17
admission of such person as a substituted Limited Partner, including,
without limitation, the written acceptance and adoption by such person of
the provisions of this Agreement; and (iii) pays a substitution fee to the
Partnership, not in excess of $100, which is sufficient to cover all
reasonable legal expenses and filing fees connected with the admission of
such person as a substituted Limited Partner, then this Agreement shall be
amended in accordance with the provisions of Uniform Limited Partnership
Act of Illinois, and all other steps shall be taken which, in the opinion
of the General Partners, are reasonably necessary to admit such person
under said Act as a substituted Limited Partner, and such person shall
thereupon become a substituted Limited Partner.
The General Partners shall, no later than thirty (30) days after the date
of their written consent to the substitution of an assignee as a substituted
Limited Partner, amend the Certificate of Limited Partnership to reflect the
addition of said assignee as a Limited Partner. Said amendment shall be executed
by the General Partner, by said assignee (or any one of the General Partners as
his attorney-in-fact) and by his assignor (or any one of the General Partners as
his attorney-in-fact).
Section 16.2 Subject to the required consent of the General Partners
as provided in Section 16.1 hereof, in the event that any Partners shall
desire to sell, and shall receive a bonafide written offer for all or any
part of the Partnership Units he may acquire hereunder, which offer is
acceptable to such Partner, such Partner ("Selling Partner") may sell the
whole or any part of such Units, in compliance, however, with the
provisions of Section 16.2(a)-(e) hereinafter set forth.
(a) The Selling Partner shall send a copy of the offer by certified
mail to all of the Partners. The offer shall thereupon he deemed to be an
offer by the Selling Partner to sell to the other Partners the Units
offered upon the same terms and conditions as contained in the offer
received by the Selling Partner. Thereupon each Partner shall notify the
General Partners in writing by certified mail within seven (7) days after
receipt of the offer whether he rejects or accepts the offer. The offer
shall be deemed to have been rejected by any Partner whose acceptance is
not received by the General Partners by the end of the seven (7) day
period. Any Partner ("Purchasing Partner") desiring to purchase less than
all the Units offered shall set forth in his letter of acceptance the
number of Units that he is willing to purchase;
(b) In the event that the number of Units accepted is less than the
number offered by the Selling Partner, the Selling Partner shall have the
right to sell the Units so offered to the person or persons named in the
offer communicated to the Partners, provided, however, that such sale is to
be made strictly in accordance with the terms of the offer originally
submitted to the Partners;
(c) In the event that the number of Units accepted by the Partners is
equal to the number offered by the Selling Partner, the Selling Partner
shall be bound to sell all the Units offered, and each Partner who has
accepted any part of the Units offered shall be bound to purchase the same;
18
(d) In the event that the number of Units accepted by the Partners
exceed the number of Units offered by the Selling Partner, a majority of
the General Partners is hereby vested with the unrestricted discretion to
divide among the Purchasing Partners the Units offered by the Selling
Partner to the nearest whole Unit, or, alternatively, the General Partners,
in their unrestricted discretion, may allocate the Units to the Purchasing
Partners by lot. The General Partners shall notify the Purchasing Partners
of any allocation so made within twelve (12) business days from the date of
the receipt by the General Partners of the offer of the Selling Partner;
the Selling Partner shall thereupon be bound to sell all the Units offered
and each of the Purchasing Partners shall be bound to purchase the number
of Units accepted by him;
(e) In the event that any Purchasing Partner defaults in his
obligation to purchase the number of Units accepted by him, the Selling
Partner shall be free of the restrictions imposed by the provisions of this
Article XVI in respect of such number of Units.
Section 16.3 No transfer or sale of a Partner's Units or any part
thereof, though otherwise permitted hereunder, shall be valid and effective
(and the Partnership shall not recognize the same for the purposes of
making payments of profits, income, return of contribution, or other
distribution with respect to such interest or part thereof) (i) unless and
until there is filed with the General Partners a completely executed
instrument in writing in the form set forth below, subscribed by both
parties to the transfer, each of whose signature is to be witnessed and
(ii) unless and until the Partnership shall have delivered to the
transferee an acknowledgment in writing of the recordation of the transfer
on the books of the Partnership:
ASSIGNMENT
_________________________________________________________ hereby assigns to
________________________________________________________ all of my (its)
right, title and interest in and to __________________________ capital
Partnership Units in FIRST WILKOW VENTURE, a Limited Partnership organized
under the laws of the State of Illinois, and directs that all further
distribution of profits, income and return of contributions on account of
such Units be paid to such assignee.
_______________________________________, as assignee, hereby accepts
assignment of such Units subject to all the terms, covenants and conditions
of the Limited Partnership Agreement dated as of December 8, 1972, as the
same may have been amended to the date hereof.
Dated:
------------------------------
Witness
----------------------------- ----------------------------------------
Assignor
Witness
-----------------------------
19
Assignee
Section 16.4 The Partnership shall, after recording any such transfer,
thereafter direct all further distributions of income, profits and
contributions on account of the Units transferred to the transferee,
regardless of whether such transfer, as between the parties hereto, is or
is intended to be by way of pledge, mortgage, encumbrance or other
hypothecation.
Section 16.5 Any person admitted to the Partnership as a substituted
Limited Partner shall be subject to and bound by all the provisions of this
Agreement as if originally a party to this Agreement.
Section 16.6 Anything in this Agreement to the contrary
notwithstanding, if in their sole discretion the General Partners deem it
to be in the best interests of the Partnership, they may admit, as a
substituted Limited Partner in the place of his assignor, an assignee of an
interest in the Partnership who has not otherwise become a substituted
Limited Partner.
Section 16.7 In the event of the sale of the Units of any one of the
General Partners or in the event of the death, retirement, adjudication of
insanity or incompetency or bankruptcy, or inability to serve of any one of
the General Partners, the Partnership shall thereby be dissolved and
terminated, but may be continued by one or more of the surviving General
Partners, if he or they so elect within thirty (30) days from the date of
such sale or the date of the death, retirement, adjudication of insanity or
incompetency, or inability to serve of any one of the General Partners:
(a) If the surviving General Partner or Partners elect to continue the
business of the Partnership, he or they, as the case may be, shall cause
the Certificate of Limited Partnership to be amended, indicating the
continuation of the Partnership by the surviving General Partner or
Partners. The amendment of the Certificate shall constitute the election by
the surviving General Partner or Partners to continue the business of the
Partnership;
(b) Upon the failure of the surviving General Partner or Partners to
elect to continue the business of the Partnership within the time provided
for in Section 16.8 hereof, the Partnership shall terminate, and the then
remaining Limited Partners may, provided that such action does not
contravene the Partnership Law of the State of Illinois, within a
reasonable time, but not later than two (2) months following such
termination, elect one of the options stated in subdivisions i, ii and iii
immediately following:
(i) Reconstitute and form a new Limited Partnership and transfer
the assets of the Partnership to such new Limited Partnership, appoint
a General Partner or Partners upon such terms as the remaining Limited
Partners shall agree, and to do everything requisite to the formation
of a new Limited Partnership under the laws of the State of Illinois.
20
(ii) Transfer the assets of the Partnership to a corporation in
which each Partner will have the same proportionate interest in the
outstanding capital stock as he had in the Partnership, all other
provisions concerning the Articles of Incorporation, bylaws,
capitalization and management hereof to be determined by the
affirmative vote of the holders of at least sixty (60%) percent of the
then outstanding Units.
(iii) If the holders of sixty (60%) percent of the Units do not
elect to take action under either subdivision (i) or (ii) hereof, in
the time provided, then the Partnership shall be dissolved. In such
event a full and final account of the assets and liabilities of the
Partnership shall be prepared, the assets shall be liquidated as
promptly as possible, the debts of the Partnership paid, and the net
proceeds of the liquidation shall be distributed to the Partners as
provided for in paragraph 10.3 hereof.
(c) In the event that any of the General Partners shall become
incompetent or bankrupt, or in the event that a General Partner retires or
dies, then such General Partner (in the case of incompetency or bankruptcy)
or his executors, administrators or heirs (in the case of death) shall
become a Limited Partner and shall have the same rights and obligations
that he would have had if, at the commencement of this Partnership, he had
been a Limited Partner and if, in such capacity, had died or become
incompetent, bankrupt or retired.
Section 16.9 For purposes of this Agreement, the "bankruptcy" of a
General Partner shall be deemed to have occurred upon the happening of any
of the following: (i) the filing of an application by such General Partner
for, or a consent to, the appointment of a trustee of his assets, (ii) the
filing by such General Partner of a voluntary petition in bankruptcy or the
filing of a pleading in any court of record admitting in writing his
inability to pay his debts as they come due, (iii) the making by such
General Partner of a general assignment for the benefit of creditors, (iv)
the filing by such General Partner of an answer admitting the material
allegations of, or his consenting to, or defaulting in answering, a
bankruptcy petition filed against him in any bankruptcy proceeding, or (v)
the entry of an order, judgment or decree by any court of competent
jurisdiction adjudicating such General Partner a bankrupt or appointing a
trustee of his assets, and such order, judgment or decree continuing
unstayed and in effect for any period of 60 consecutive days.
Section 16.10 Upon the written consent or affirmative vote of the
Partners holding a majority of the then outstanding Units, any General
Partner may be removed. Any General Partner so removed shall, for the
purpose of this Agreement, be deemed to have "withdrawn" from the
Partnership as a General Partner, but shall be deemed to continue as a
Limited Partner with respect to his Partnership Units. The removal of a
General Partner shall in no way derogate from any rights or affect any
obligations of such General Partner attributable to the period prior to the
date of such removal.
Section 16.11 Anything in this Agreement to the contrary
notwithstanding, no Partner or other person who has become the holder of an
interest in the Partnership shall transfer, assign or encumber all or any
portion of his interest in the Partnership during any fiscal year if such
21
transfer, assignment or encumbrance would (in the sole and unreviewable
opinion of the General Partners) result in the termination of the
Partnership for purposes of the Internal Revenue Code, as amended from time
to time.
Section 16.12 In the event a vote of the Partners shall be taken
pursuant to this Agreement for any reason, a Limited Partner shall, solely
for the purpose of determining the number of Units held by him in weighing
his vote, be deemed the holder of any Units assigned by him in respect of
which the assignee has not become a substituted Limited Partner.
ARTICLE XVII
ADDITIONAL PROVISIONS CONCERNING DISSOLUTION
Section 17.1 In addition to any other causes for termination set forth
herein, the Partnership shall terminate and shall be dissolved upon the
happening of any of the following events:
(a) Sale of all of the Partnership property;
(b) Mutual consent of all of the General Partners;
(c) Death, retirement, bankruptcy or incompetency of the last
surviving General Partner.
or the failure of the last surviving General Partner to exercise his
election to continue the business as provided for in Section 16.8 hereof,
and the failure or inability of the Limited Partners to make any of the
elections provided for in Section 16.8(b) hereof.
Section 17.2 In the event of the dissolution of the Partnership for
any reason, the General Partners shall proceed promptly and continue with
reasonable expedition to wind up the affairs of and liquidate the
Partnership. The holders of the Units shall continue to share profits and
losses during the period of liquidation in the same proportion as before
the dissolution. The General Partners shall have full right and unlimited
discretion to determine the time, manner and terms of any sale or sales of
Partnership property pursuant to such liquidation having due regard to the
activity and condition of the relevant market and general financial and
economic conditions.
Section 17.3 After paying or providing for the payment of all debts
and liabilities of the Partnership and all expenses of liquidation, and
subject to the right of the General Partners to set up such reserves as it
may deem reasonably necessary for any contingent or unforeseen liabilities
or obligations of the Partnership, the proceeds of the liquidation and any
other assets of the Partnership shall be distributed to or for the benefit
of the Partners in accordance with their respective Participating
Percentages.
Section 17.4 Within a reasonable time following the completion of the
liquidation of the Partnership, the General Partners shall supply to each
of the Partners a statement audited by the Partnership's independent public
accountants
22
which shall set forth the assets and the liabilities of the Partnership as
of the date of complete liquidation and each Unit holder's pro rata portion
of distributions pursuant to Section 17.3.
Section 17.5 Each holder of a Unit shall look solely to the assets of
the Partnership for all distributions with respect to the Partnership and
his capital contribution thereto and share of profits or losses thereof,
and shall have no recourse therefor against any General Partner or any
Limited Partner. No holder of a Unit shall have any right to demand or
receive property other than cash upon dissolution and termination of the
Partnership.
Section 17.6 Upon the completion of the liquidation of the Partnership
and the distribution of all Partnership assets, the Partnership shall
terminate and the General Partners shall have the authority to execute and
record a Certificate of Cancellation of the Partnership as well as any and
all other documents required to effectuate the dissolution and termination
of the Partnership.
ARTICLE XVIII
POWER OF ATTORNEY
Section 18.1 The Partners, by their execution hereof, jointly and
severally hereby irrevocably constitute and appoint the General Partners,
or any one of them, with full power of substitution, their true and lawful
attorney-in-fact in their name, place and ▇▇▇▇▇ to make, execute, sign,
acknowledge, record and file, on behalf of them and on behalf of the
Partnership, the following:
(i) a Certificate of Limited Partnership, a Certificate of Doing
Business Under an Assumed Name, and any other certificates or
instruments which may be required to be filed by the Partnership or
the Partners under the laws of the State of Illinois and any other
jurisdiction whose laws may be applicable;
(ii) a Certificate of Cancellation of the Partnership and such
other instruments or documents as may be deemed necessary or desirable
by the General Partners, or any one of them, upon the termination of
the Partnership business;
(iii) any and all amendments of the instruments described in
subsections 18.1(i) and 18.1(ii) above; provided such amendments are
either required by law to be filed, or are consistent with this
Agreement or have been authorized by the particular Partner or
Partners; and
(iv) any and all such other instruments as may be deemed
necessary or desirable by the General Partners to carry out fully the
provisions of this Agreement in accordance with its terms.
Section 18.2 The foregoing grant of authority:
23
(i) is a Special Power of Attorney coupled with an interest, is
irrevocable and shall survive the death or incapacity of the Partner
granting the power;
(ii) may be exercised by the General Partners, or any one of
them, on behalf of each Partner by a facsimile signature or by listing
all of the Partners executing any instrument with a single signature
as attorney-in-fact for all of them; and
(iii) shall survive the delivery of an assignment by a Partner of
the whole or any portion of his interest.
ARTICLE XIX
NOTICES
All notices and demands required or permitted under this Agreement shall be
in writing and shall be deemed to have been delivered upon deposit in the United
States mail, certified or registered, postage prepaid, to the Partners at their
addresses as shown from time to time on the records of the Partnership. Any
Partner may specify a different address by notifying the General Partners in
writing of such different address.
ARTICLE XX
AMENDMENT OF LIMITED PARTNERSHIP AGREEMENT
Section 20.1 Except as otherwise required by law, this Agreement may
be amended in any respect upon the affirmative vote of the Partners holding
at least sixty (60%) of the then outstanding Units. If Partners holding
more than ten (10%) percent of the then outstanding Units request in
writing that the General Partners submit to a vote of the Partners a
particular proposed amendment to this Agreement, the General Partners shall
do so. Any vote of the Partners may be accomplished at a meeting of the
Partners called for such purpose by the General Partners upon not less than
ten (10) days prior notice or, in lieu of a meeting, by the written consent
of the required percentage of Partners.
Section 20.2 In the event this Agreement shall be amended pursuant to
this Article XX, the General Partners shall amend the Certificate of
Limited Partnership to reflect such change if it deems such amendment of
the Certificate to be necessary or appropriate.
ARTICLE XXI
GENERAL AGREEMENTS
Section 21.1 The Partners agree that the Partnership properties are
not and will not be suitable for partition. Accordingly, each of the
Partners hereby
24
irrevocably waives any and all rights that he may have to maintain any
action for partition of any of the Partnership property.
Section 21.2 This Agreement constitutes the entire agreement among the
parties. It supersedes any prior agreement or understandings among them,
and it may not be modified or amended in any manner other than as set forth
herein. Any dispute or controversy arising under, out of, or in connection
with or in relation to this Agreement shall be determined by arbitration in
the City of Chicago pursuant to the rules then obtaining of the American
Arbitration Association and judgment may be entered upon the award.
Section 21.3 This Agreement and the rights of the parties hereunder
shall be governed by and interpreted in accordance with the laws of the
State of Illinois.
Section 21.4 Except as herein otherwise specifically provided, this
Agreement shall be binding upon and inure to the benefit of the parties and
their legal representatives, heirs, administrators, executors, successors
and assigns.
Section 21.5 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.
Section 21.6 Captions 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.
Section 21.7 If any provision of this Agreement, or the application of
such provision to any person or circumstance, shall be held invalid, the
remainder of this Agreement, or the application of such provision to
persons or circumstances other than those to which it is held invalid,
shall not be affected thereby.
Section 21.8 This Agreement may be executed in several counterparts,
each of which shall be deemed an original but all of which shall constitute
one and the same instrument. In addition, this Agreement may contain more
than one counterpart of the signature page and this Agreement may be
executed by the affixing of the signatures of each of the Partners to one
of such counterpart signature pages; all of such counterpart signature
pages shall be read as though one, and they shall have the same force and
effect as though all of the signers had signed a single signature
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as of
the day and year first above written.
NAME ADDRESS
---- -------
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------- ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
25
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------- ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 46 East Schiller Street
------------------------------------- Chicago, Illinois
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
GENERAL PARTNERS
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------- ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
LIMITED PARTNER
NUMBER OF UNITS: 1
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 789 ▇▇▇▇▇▇▇▇▇ - Coach House
------------------------------------- Glencoe, Illinois
LIMITED PARTNER
NUMBER OF UNITS: 1
26
(EXHIBIT I TO AGREEMENT OF LIMITED PARTNERSHIP)
FIRST WILKOW VENTURE
SCHEDULE OF EXCHANGE VALUES
The following tabulation sets forth (i) the name of each terminating
partnership, (ii) the value assigned to it for exchange purposes, (iii) the
number of units outstanding, (iv) the value per unit, (v) the total number
of units in First Wilkow Venture ("FWV") allocable to it, (vi) the number
of First Wilkow Venture units to be received for each unit, and (vii) the
percentage of outstanding units of First Wilkow Venture allocable to the
aggregate units to be exchanged:
(I) (II) (III) (IV) (V) (VI) (VII)
PERCENTAGE OF
TOTAL FWV
NUMBER OF UNITS
VALUE PER FWV UNITS ALLOCABLE TO
TOTAL VALUE NUMBER OF UNIT FOR NUMBER OF FOR EACH TOTAL
NAME OF TERMINATING FOR EXCHANGE UNITS EXCHANGE UNITS IN TERMINATING TERMINATING
PARTNERSHIP PURPOSES OUTSTANDING PURPOSES FWV UNIT UNITS
------------------- ------------ ----------- --------- ----------- ----------- -------------
Bristol Court Assoc. $ 1,800,000 1,800 $1,000 18,000 8.722
First Whitnall Assoc. 157,500 30 5,250 1,575 .763
First Willowick Pool Assoc. 360,000 300 1,200 3,600 1.744
23 ▇. ▇▇▇▇▇▇▇ Assoc. 166,200 40 4,155 1,662 .805
M & J ▇▇▇▇▇▇▇ Towers Assoc. 336,000 105 3,200 3,360 1.628
Second M & J Assoc. 265,100 100 2,651 2,651 1.285
Third M & J Assoc. 800,000 1,000 800 8,000 3.876
First ▇▇▇▇▇▇ Assoc. 234,000 90 2,600 2,340 1.134
Fourth M & J Assoc. 425,000 425 1,000 4,250 2,059
Fifth M & J Assoc. 325,000 325 1,000 3,250 1.575
Outer Drive East Assoc. 4,312,000 3,920 1,100 43,120 20.893
Second Outer Drive East Assoc. 1,000,000 1,000 1,000 10,000 4.845
Third ODE Venture 200,000 200 1,000 2,000 .969
Second M & J Venture 2,650,000 2,650 1,000 26,500 12.840
First Belvidere Venture 686,000 686 1,000 6,860 3.324
First Brittany Venture 850,000 850 1,000 8,500 4.119
Wilkow Associates 1,755,000 1,950 900 17,550 8.504
6230 North Kenmore Assoc. 500,000 250 2,000 5,000 2.423
222 West ▇▇▇▇▇ Assoc. 1,445,000 1,445 1,000 14,450 7.002
Scottsdale Shopping Center Assoc. 971,250 1,850 525 9,712 1/2 4.706
▇▇▇-▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Assoc. 1,400,000 280 5,000 14,000 6.784
----------- ------ ----------- -------
$20,638,050 19,296 206,380 1/2 100.000
=========== ====== =========== =======
27
