Exhibit 10.1
SECOND AMENDED AND RESTATED
AGREEMENT OF GENERAL PARTNERSHIP
of
FM PROPERTIES OPERATING CO.
December 15, 1997
TABLE OF CONTENTS
Page
ARTICLE I Definitions
1.1 Definitions...............................................1
ARTICLE II Organizational Matters
2.1 Formation and Continuation.................................2
2.2 Name.......................................................2
2.3 Purpose....................................................2
2.4 Principal Place of Business; Agent for Service of Process..2
2.5 Term.......................................................3
2.6 Title to Partnership Property..............................3
2.7 Certificates...............................................3
ARTICLE III Capital Accounts and
Capital Contributions
3.1 Capital Contributions......................................3
3.2 Capital Accounts...........................................3
3.3 Interest...................................................3
3.4 No Withdrawal..............................................3
3.5 Loans from Partners........................................3
3.6 Transferred Capital Accounts...............................3
ARTICLE IV Allocations and
Distributions
4.1 Allocations................................................3
4.2 Distributions..............................................4
ARTICLE V Management of the
Partnership
5.1 Authority of the Partners..................................4
5.2 Right to Rely on Partners..................................4
5.3 Compensation and Reimbursement of Partners.................4
5.4 Transactions with Affiliates; Conflicts of Interest........4
5.5 Other Business Activities..................................5
ARTICLE VI Books, Records,
Accounting and Reports
6.1. Records, Accounting and Reports............................5
6.2. Fiscal Year................................................5
ARTICLE VII Dissolution and
Liquidation
7.1 Dissolution................................................6
7.2 Winding Up.................................................6
7.3 Distributions in Kind......................................7
7.4 Rights of Partners.........................................7
ARTICLE VIII Miscellaneous
8.1 Survival of Agreements.....................................8
8.2 Amendments; No Waivers.....................................8
8.3 Expenses...................................................8
8.4 Successors and Assigns.....................................8
8.5 Headings...................................................8
8.6 GOVERNING LAW; ENTIRE AGREEMENT..........................8
8.7 Counterparts; Effectiveness................................9
8.8 Severability...............................................9
8.9 Further Assurances.........................................9
SECOND AMENDED AND RESTATED
AGREEMENT OF GENERAL PARTNERSHIP
of
FM PROPERTIES OPERATING CO.
THIS SECOND AMENDED AND RESTATED AGREEMENT OF GENERAL PART-
NERSHIP dated as of December 15, 1997 (the "Agreement") is
entered into by and between FM Properties Inc., a Delaware
corporation ("FMPO"), and FMPO L.L.C., a Delaware limited
liability company ("LLC").
W I T N E S S E T H:
WHEREAS, FM Properties Operating Co. (the "Partnership") was
formed under the terms of the Agreement of General Partnership
dated as of May 20, 1992, as amended, and pursuant to the
provisions of the Delaware Uniform Partnership Law; and
WHEREAS, upon the execution hereof LLC will be admitted as a
general partner of the Partnership; and
WHEREAS, LLC owns a .01 percent general partnership interest
in the Partnership and FMPO owns a 99.99 percent general
partnership interest in the Partnership; and
WHEREAS, the parties hereto desire to continue the
Partnership and to amend and restate the original agreement of
general partnership, as amended, in its entirety;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
1.1 Definitions. The following terms as used herein have
the meanings set forth below.
"Affiliate" means, with respect to any Person, any Person
that directly or indirectly controls, is controlled by, or is
under common control with such Person. As used in this
definition, the term "controls" means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through ownership of
voting securities, by contract or otherwise.
"Capital Account" means with respect to any Partner the
capital account maintained for such Partner pursuant to Section
3.2.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Indemnified Person" means each Partner, each of its
Affiliates, and each of their respective officers, directors,
employees, agents, stockholders or Representatives.
"Partner" means LLC and FMPO and their respective successors
and permitted assigns.
"Partnership" means the partnership established by this
Agreement.
"Partnership Interest" means the interest of a Partner in
the Partnership.
"Percentage Interest" means (i) as to LLC, .01 percent and
(ii) as to FMPO, 99.99 percent.
"Person" means an individual, a corporation, a partnership,
a limited liability company, a trust, or any other entity or
organization, including a government or political subdivision or
agency or instrumentality thereof.
"Real Estate Interests" means all interests in real property
held directly or indirectly by the Partnership at any time.
"Uniform Act" means the Delaware Uniform Partnership Law, 6
Del. Code S 1501 et sec., as amended from time to time.
ARTICLE II
Organizational Matters
2.1 Formation and Continuation. The rights, powers, duties
and liabilities of the Partners and the administration and
termination of the Partnership shall be governed by this
Agreement and the Uniform Act. The business of the Partnership
shall be continued without liquidation of Partnership affairs.
All assets of the Partnership immediately prior to the date
hereof shall hereafter continue to be the property of the
Partnership and all liabilities of the Partnership immediately
prior to the date hereof shall continue as liabilities of the
Partnership hereafter.
2.2 Name. The name of the Partnership shall be "FM
Properties Operating Co." or such other name as a Partner may
from time to time designate.
2.3 Purpose. The purpose and business of the Partnership
shall be any lawful purpose.
2.4 Principal Place of Business; Agent for Service of
Process. (a) The principal place of business of the Partnership
shall be 1615 Poydras Street, New Orleans, Louisiana 70112, or
such other place as a Partner may from time to time determine.
The Partnership may maintain offices at such other place or
places as a Partner may deem advisable.
(b) The registered office of the Partnership in the state
of Delaware shall be 1209 Orange Street in the City of
Wilmington, County of New Castle and its agent for service of
process on the Partnership at such registered office shall be The
Corporation Trust Company.
2.5 Term. The Partnership shall continue in existence
until its termination in accordance with the provisions of
Article VII.
2.6 Title to Partnership Property. All property of the
Partnership, whether real or personal, tangible or intangible,
shall be deemed to be owned by the Partnership as an entity, and
no Partner, individually, shall have any direct ownership
interest in such property.
2.7 Certificates. A Partner shall file and publish all
such certificates, notices, or other documents as may be required
for the formation and operation of a partnership in Delaware and
any other jurisdiction in which the Partnership may elect to do
business.
ARTICLE III
Capital Accounts and Capital Contributions
3.1 Capital Contributions. The Partners have made their
initial capital contributions to the Partnership. Unless
otherwise provided in this Agreement, the Partners may, but shall
not be obligated to, make additional capital contributions in
such manner and at such time as may be approved by the Partners.
3.2 Capital Accounts. A separate Capital Account shall be
established and maintained in respect of each Partner.
3.3 Interest. No interest shall be paid by the Partnership
on capital contributions or on balances in Partners' Capital
Accounts.
3.4 No Withdrawal. A Partner shall not be entitled to
withdraw any part of its capital contribution or its Capital
Account or to receive any distribution from the Partnership,
except as provided in Section 4.2 and Article VII.
3.5 Loans from Partners . Loans by a Partner to the
Partnership may bear interest and shall not be considered capital
contributions.
3.6 Transferred Capital Accounts. In the event that any
Partnership Interest or portion thereof is transferred in
accordance with the terms of this Agreement, the transferee shall
succeed to the Capital Account of the transferee Partner to the
extent such Capital Account relates to the transferred
Partnership Interest or portion thereof.
ARTICLE IV
Allocations and Distributions
4.1 Allocations. Except as otherwise provided in this
Agreement, for purposes of maintaining the Capital Accounts and
in determining the rights of the Partners among themselves, each
item of income, gain, loss, deduction, and credit shall be
allocated as a part of the net income or net loss for the year to
the Partners in accordance with their respective Percentage
Interests, and net losses for any taxable year shall be allocated
to the Partners in accordance with their respective Partnership
Interests.
4.2 Distributions. (a) From time to time, and not less
often than quarterly, the Partners shall review the Partnership's
accounts to determine whether distributions are appropriate. At
any time the Partners may make such distributions as they may
determine in their discretion, without being limited to current
or accumulated income or gains. Such distributions may be made
from Partnership revenues, capital contributions or Partnership
borrowings. The Partners may distribute to Partners other
Partnership property. All such distributions shall be made
concurrently to all Partners and in accordance with the
Percentage Interests of the Partners.
(b) The Partners acknowledge and agree that the Partners
shall use reasonable efforts, in accordance with prudent business
practices, to take such actions as may be necessary, including,
without limitation, selling Partnership assets in order to
generate sufficient cash flow to enable the Partners to make
distributions to the Partners as contemplated by Section 4.2(a).
(c) Any amounts paid pursuant to Section 5.3(b) shall not
be deemed to be distributions for purposes of this Agreement.
ARTICLE V
Management of the Partnership
5.1 Authority of the Partners. The Partners shall manage
the business of the Partnership and shall have all of the rights,
powers and authority which may be possessed by general partners
under the Uniform Act.
5.2 Right to Rely on Partners. Any Person dealing with the
Partnership may rely upon the signature of either LLC or FMPO as
to its authority to make any undertaking on behalf of the
Partnership and shall not be required to determine any facts or
circumstances bearing upon the existence of such authority.
5.3 Compensation and Reimbursement of Partners. (a)
Except as otherwise provided in this Agreement, the Partners
shall not be compensated for their services rendered on behalf of
the Partnership or otherwise in their capacity as a Partner.
(b) The Partners shall be reimbursed promptly upon request
for all costs and expenses incurred by it on behalf of the
Partnership and such amounts of general and administrative
expenses and other indirect costs as the Partners reasonably
determine are allocable to the Partnership.
5.4 Transactions with Affiliates; Conflicts of Interest.
(a) In addition to the transactions specifically contemplated by
this Agreement, the Partnership may purchase property, obtain
services, or borrow funds from, or sell property, provide
services or lend money to, or otherwise deal with, the Partners
or any of their respective Affiliates. Each Partner acknowledges
and agrees that such purchase or sale of property, performance or
receipt of services, borrowing or lending of funds, or other
dealings, may give rise to conflicts of interest between the
Partnership, on the one hand, and a Partner or its Affiliates, on
the other hand.
(b) Without limiting the generality of the foregoing, each
Partner acknowledges and agrees that:
(i) a Partner or any Affiliate may, but shall not be
obligated to, make loans to the Partnership;
(ii) a Partner, acting in its capacity as such, will
have the right to cause the Partnership to take such
actions, including the sale of assets or the making of
capital expenditures, as are necessary to enable the
Partnership to pay when due all amounts of interest on and
principal of the obligations described in clause (i) of this
Section 5.4(b);
(iii) a Partner will have the right to engage in
the real estate development business anywhere in the world;
and
(iv) a Partner will have the right to compromise or
settle any action or claim in respect of which a Partner may
obtain indemnification from the Partnership under this
Agreement, or otherwise.
(c) Any transaction between the Partnership or any
Affiliate of the Partnership, on the one hand, and a Partner or
any Affiliate of a Partner, on the other hand, shall be on an
arm's-length basis.
5.5 Other Business Activities. Either Partner may engage
in or possess any interest in any other business of any nature
independently or with others, including businesses that compete
with the Partnership, and neither the Partnership nor the other
Partner shall have any right or obligation by virtue of this
Agreement in or to such other business or in or to any income or
profits derived therefrom.
ARTICLE VI
Books, Records, Accounting and Reports
6.1. Records, Accounting and Reports. The Partners shall
keep or cause to be kept books with respect to the Partnership's
business, which books shall be kept at the principal office of
the Partnership. The books of the Partnership shall be
maintained for financial reporting purposes in accordance with
generally accepted accounting principles consistently applied.
For the term of the Partnership and for a period of five years
thereafter (or for such longer period an may be required by law),
the Partners shall maintain and preserve all books of account and
other relevant documents.
6.2. Fiscal Year. The fiscal year of the Partnership shall
be the calendar year.
ARTICLE VII
Dissolution and Liquidation
7.1 Dissolution. The Partnership shall dissolve and
commence winding up and liquidation upon:
(a) the unanimous election to dissolve the Partnership by
the Partners;
(b) the sale of all or substantially all of the assets of
the Partnership;
(c) with respect to either Partner, (i) the commencement of
a voluntary case or other proceeding by a Partner seeking
liquidation, reorganization or other relief with respect to such
Partner or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar
official of such Partner or any substantial part of its property,
or the consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or
other proceeding commenced against such Partner, or the making by
such Partner of a general assignment for the benefit of
creditors, or the failure generally by such Partner to pay its
debts as they become due, or the taking of action by such Partner
to authorize any of the foregoing or (ii) the commencement of any
involuntary case or other proceeding against such Partner seeking
liquidation, reorganization or other relief with respect to such
Partner or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar
official of such Partner or any substantial part of its property,
which involuntary case or other proceeding shall remain
undismissed or unstayed for a period of 60 days, or (iii) the
entry of an order for relief against such Partner under the
Federal bankruptcy laws as now or hereafter in effect;
(d) dissolution being required by operation of law (other
than by judicial decree and other than by the withdrawal of the
last Partner where there is no remaining or surviving Partner);
(e) the entry of a decree of judicial dissolution pursuant
to Section 1532 of the Uniform Act; or
(f) the withdrawal of the last Partner where there is no
remaining or surviving Partner.
Without the unanimous consent of the Partners, each Partner
agrees not to voluntarily withdraw as a Partner and if such
Partner withdraws in violation of this Agreement, the Partnership
may recover damages for breach of this Agreement.
7.2 Winding Up. (a) Upon dissolution of the Partnership
the Partnership shall continue solely for purposes of winding up
its affairs in an orderly manner, liquidating its assets, and
satisfying the claims of its creditors and Partners, and no
Partner shall take any action inconsistent with, or not necessary
to or appropriate for, the winding up of the Partnership's
business and affairs; provided that all covenants contained in
this Agreement and obligations provided for in this Agreement
shall continue to be fully binding upon the Partners until such
time as the property of the Partnership or proceeds from the sale
thereof has been distributed pursuant to this Section 7.2 and the
Partnership has been terminated. FMPO shall act as the
liquidator of the Partnership. FMPO shall liquidate the assets
of the Partnership, and apply and distribute the proceeds of such
liquidation in the following order of priority, unless otherwise
required by mandatory provisions of applicable law:
(i) to creditors of the Partnership, other than
Partners who are creditors, to the extent permitted by law,
in satisfaction of liabilities of the Partnership (whether
by payment or the making of reasonable provision for payment
thereof) other than liabilities for which reasonable
provision for payment has been made;
(ii) pro rata to the Partners in payment of any loans
made by them to the Partnership;
(iii) to the Partners, in proportion to and to the
extent of the positive balances in their respective Capital
Accounts; and
(iv) to the Partners in accordance with their
respective Percentage Interests.
(b) FMPO acknowledges and agrees that LLC shall have the
right to acquire property of the Partnership pursuant to any
dissolution and liquidation of the Partnership.
7.3 Distributions in Kind. Notwithstanding the provisions
of Sections 7.1 and 7.2 regarding the method and timing of the
liquidation of the assets of the Partnership, but subject to the
order of priorities set forth therein, if on dissolution of the
Partnership FMPO determines that an immediate sale of part or all
of the Partnership's assets would be impractical or would cause
undue loss to the Partners, FMPO may, in its absolute discretion,
defer for a reasonable time the liquidation of any assets except
those necessary to satisfy liabilities of the Partnership (other
than those to Partners) and may, in its absolute discretion,
distribute to the Partners, in lieu of cash, as tenants in common
and in accordance with the provisions of Sections 7.2(a)(iii) and
7.2(a)(iv), undivided interests in such Partnership assets as
FMPO deems not suitable for liquidation. Any distributions in
kind shall be subject to such conditions relating to the
disposition and management thereof as FMPO deems reasonable and
equitable and to any joint operating agreements or other
agreements governing the operation of such properties at such
time. FMPO shall determine the fair market value of any property
distributed in kind using such reasonable method of valuation as
it may adopt.
7.4 Rights of Partners. The Partners shall not be
personally liable for the return of the capital contributions, or
any portion thereof, it being expressly understood that any such
return shall be made solely from Partnership assets. Except as
otherwise provided in this Agreement, no Partner shall have the
right to demand or receive property other than cash from the
Partnership. Each Partner, to the extent permitted by applicable
law, hereby waives its rights to partition of the Partnership
assets and, to that end agrees that it will not seek or be
entitled to partition any such assets whether by way of physical
partition, judicial sale or otherwise.
ARTICLE VIII
Miscellaneous
8.1 Survival of Agreements. The agreements contained
herein and in any certificate or other writing delivered pursuant
hereto shall not survive the termination of this Agreement except
as otherwise provided for herein.
8.2 Amendments; No Waivers. (a) Any provision of this
Agreement may be amended or waived if, and only if, such
amendment or waiver is in writing and signed, in the case of an
amendment, by each of the Partners or in the case of a waiver, by
the Partner against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate an a waiver
thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
8.3 Expenses. Except as otherwise contemplated herein,
all costs and expenses incurred in connection with this Agreement
shall be paid by the Partner incurring such cost or expense, and
this obligation shall survive the termination of this Agreement.
8.4 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the
Partners and their respective successors and permitted assigns.
This Agreement is for the sole benefit of the Partners and
nothing herein expressed or implied shall give or be construed to
give any Person or entity, other than the Partners, any legal or
equitable rights hereunder.
8.5 Headings. Headings are for ease of reference only and
shall not form a part of this Agreement.
8.6 GOVERNING LAW; ENTIRE AGREEMENT. (a) THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF
THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO THE PRINCIPLES OF
CONFLICTS OF LAWS THEREOF. THIS AGREEMENT CONSTITUTES THE ENTIRE
AGREEMENT OF THE PARTNERS WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND SUPERSEDES ALL PRIOR AGREEMENTS WITH RESPECT THERETO.
(b) Each of the Partners hereby irrevocably appoints The
Corporation Trust Company, at its office in Wilmington, Delaware,
its lawful agent and attorney to accept and acknowledge service
of any and all process against it in any action, suit or
proceeding arising in connection with this Agreement and upon
whom such process may be served, with the same affect as if such
party were a resident of the State of Delaware and had been
lawfully served with such process in such jurisdiction. Further,
each Partner hereby irrevocably submits to the nonexclusive
jurisdiction of the United States District Court for the District
of Delaware or any court of the State of Delaware in any such
action, suit or proceeding, and agrees that any such action,
suit, or proceeding may be brought in such court (and waives any
objection to venue therein), provided, however, that such consent
to jurisdiction is solely for the purpose referred to in this
Section 8.6(b) and shall not be deemed to be a general submission
to the jurisdiction of said Courts or in the State of Delaware
other than for such purpose.
(c) The choice of law and forum provisions of this Section
8.6 have been negotiated in good faith and agreed upon by the
parties hereto and are reasonable especially considering that
this Agreement is subject to and conforms with the Uniform Act.
All Partners, by their execution of this Agreement, expressly
agree, to the fullest extent permitted by law, not to challenge
the choice of law or forum provisions contained in this Section
8.6.
8.7 Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an
original. This Agreement shall become effective when each
Partner shall have received a counterpart hereof signed by each
other Partner.
8.8 Severability. If any provision of this Agreement or
the application thereof to any Person or circumstance shall be
invalid or unenforceable to any extent, the remainder of this
Agreement and the application of such provisions to other Persons
or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
8.9 Further Assurances. The Partners will execute and
deliver such further instruments and do such further acts and
things as may be required to carry out the intent and purpose of
this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed by
FMPO and LLC on this ____ day of December, 1997.
Sworn to before me this FMPO L.L.C.
15th day of December, 1997.
By: FM Properties Inc., as
Manager
Notary Public By: /s/ Dean T. Falgoust
---------------------
Name: Dean T. Falgoust
Title: Vice President
Sworn to before me this FM Properties Inc.
15th day of December, 1997.
Notary Public By: /s/ Dean T. Falgoust
----------------------
Name: Dean T. Falgoust
Title: Vice President