EXHIBIT 10-V
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AMENDMENT AND RELEASE AGREEMENT
THIS AMENDMENT AND RELEASE AGREEMENT (the "Agreement") is
entered into as of the ___ day of __________, 1999, by and among METROPOLIS
REALTY TRUST, INC., a Maryland Corporation ("Metropolis"); and PROPERTY
PARTNERS, L.P. ("Property Partners"), CARLYLE-XIII ASSOCIATES, L.P.
("Carlyle-XIII") and CARLYLE-XIV ASSOCIATES, L.P. ("Carlyle-XIV"), each a
Delaware limited partnership (collectively, the "Indemnitors" and, together
with Metropolis, the "Parties").
WHEREAS, Metropolis holds a 95% interest as the general partner
of 237/1290 Lower Tier Associates, L.P., a Delaware limited partnership
("LTLP"), which owns (x) a 99% interest as limited partner in 237 Park
Partners, L.P. ("237 Park L.P."), which owns a direct interest in that
certain property known as ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (together
with all related personal property, intangibles, improvements and fixtures,
the "237 Property"), and (y) a 99% interest as a limited partner in 1290
Partners, L.P., a Delaware limited partnership ("1290 L.P."), which owns a
direct interest in that certain property known as ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (together with all related personal property,
intangibles, improvements and fixtures, "1290 Sixth").
WHEREAS, JMB/NYC Office Building Associates, L.P., an Illinois
limited partnership ("JMB/NYC"), holds a 98.901% interest as the limited
partner of 237/1290 Upper Tier Associates, L.P., a Delaware limited
partnership ("UTLP") which holds a 5% interest as the limited partner of
LTLP.
WHEREAS, simultaneous hereto, Oak Hill Strategic Partners,
L.P., a Delaware limited partnership ("OHSP"), JMB/NYC, Metropolis, the
Indemnitors, UTLP and certain other parties are entering into a
Restructuring Agreement (the "Restructuring Agreement") pursuant to which
(i) 237 Park L.P. shall be converted into 237 Park Partners, LLC ("237 Park
LLC"), a Delaware limited liability company, (ii) Metropolis and UTLP shall
cause LTLP to liquidate, and in connection therewith, shall receive an in-
kind distribution of their respective pro rata portions of LTLP's interests
in 237 Park LLC and 1290 L.P., and (iii) UTLP shall contribute its
membership interest in 237 Park LLC for [Class __] Partnership Units in
OHSP (the "UTLP OHSP Interests"), in each case, as more particularly
described therein.
WHEREAS, the Indemnitors, as all of the limited partners in
JMB/NYC will derive substantial benefit from the closing of the
transactions contemplated under the Restructuring Agreement.
WHEREAS, the Parties are or are the successors in interest to,
and are, as of the date hereof, all of, the parties to that certain
Indemnification Agreement dated as of October 10, 1996, a true and correct
copy of which is attached hereto as Exhibit A (the "Indemnification
Agreement").
WHEREAS, it is a condition to the closing of the transactions
under the Restructuring Agreement that this Agreement be executed by the
Parties hereto.
NOW, THEREFORE, in consideration of the mutual terms, covenants
and conditions herein contained, and for other good, valid and binding
consideration (including, without limitation, the terms, covenants and
conditions set forth in the Restructuring Agreement), the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
SECTION 1
AMENDMENT AND OTHER AGREEMENTS
1.01 Amendment. The Parties hereby amend the Indemnification
Agreement as follows:
(a) Paragraph 2 of the Indemnification Agreement is hereby
deleted in its entirety, and the following is hereby added in lieu thereof:
"2. The Indemnitors absolutely and unconditionally
agree to indemnify and to hold Indemnitee harmless from and against any and
all losses, claims, liabilities, damages, costs or expenses (including,
without limitation, reasonable counsel fees) of any nature whatsoever,
contingent or otherwise, foreseen or unforeseen, which Indemnitee may or
shall incur as a result of any of JMB L.P., its officers, directors,
partners (including, without limitation, any Indemnitor), stockholders,
agents or affiliates (collectively, the "Controlled Entities")
intentionally interfering with, impeding or preventing (including, without
limitation, through the filing by JMB L.P. of a voluntary petition under
the Bankruptcy Code or any other federal or state bankruptcy or insolvency
statute or the joining by any Controlled Entity in an involuntary petition
against JMB L.P. under the Bankruptcy Code or such other statute) any of
the following:
(x) the exercise by Indemnitee of the Purchase Right
(as defined in Section 12.2A of the Amended and Restated Partnership
Agreement (the "1290 L.P. Agreement") of 1290 Partners, L.P., a Delaware
limited partnership ("1290 L.P."), dated as of October 25, 1999 between
Indemnitee, the Upper Tier Partnership and 1290 G.P. Corp., a Delaware
corporation); or
(y) any (i) disposition, mortgage, pledge, encumbrance,
hypothecation or exchange of (A) that certain property known as ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ("▇▇▇▇ Sixth") by 1290 L.P., or (B) any
partnership interest which Upper Tier Partnership may own in 1290 L.P., or
(ii) merger or other combination of 1290 L.P. with or into another entity,
in accordance with the terms of the 1290 L.P. Agreement, provided that such
disposition, mortgage, pledge, encumbrance, hypothecation, exchange, merger
or other combination described in this clause (y) does not constitute an
"Adverse Transaction" as defined in the 1290 L.P. Agreement;
provided, that, any such action (individually, a "Prohibited
Action" and collectively, the "Prohibited Actions") is not revoked or
rescinded within the time period provided in paragraph 3 below."
(b) The Parties hereby delete paragraph 4 of the
Indemnification Agreement in its entirety and hereby substitute in its
place the following:
"4. The term "Maximum Indemnitors' Liability Amount" as
used in this Indemnification Agreement shall mean an amount equal to
$14,285,000; provided that such amount shall be reduced on a dollar for
dollar basis for each dollar actually received by Indemnitee in respect of
the JMB Collateral (as defined in the 1290 L.P. Agreement)."
(c) With respect to paragraph 5 of the Indemnification
Agreement, the Parties hereby delete the phrase "Upper Tier and Lower Tier
Partnership Agreements" and hereby substitute in its place the phrase
"Upper Tier Partnership Agreement and 1290 L.P. Agreement".
(d) With respect to clause (iii) of the first sentence of
paragraph 13 of the Indemnification Agreement, the Parties hereby delete
the phrase "or of the interest of the Upper Tier Partnership in the Lower
Tier Partnership pursuant to the Put Right under Section 12.2C of the
partnership agreement of the Lower Tier Partnership" in its entirety.
(e) With respect to paragraph 15 of the Indemnification
Agreement, the Parties hereby delete the phrase "Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇" and hereby substitute in its place the phrase "Attention: ▇▇▇▇▇
▇▇▇▇▇▇".
(f) Paragraph 19 of the Indemnification Agreement is hereby
deleted in its entirety, and the following is hereby added in lieu thereof:
"19. Except as set forth in paragraph 13 of this
Indemnification Agreement, the obligations and liabilities of the
Indemnitors under this Indemnification Agreement shall terminate upon the
earliest to occur of (a) the date upon which the transactions described in
clause (x) of paragraph 2 above have been consummated, (b) the date upon
which 1290 Sixth has been sold or transferred by 1290 L.P. or all of the
limited partnership interests which Upper Tier Partnership may own in 1290
L.P., if any, have been sold or transferred by Upper Tier Partnership, and
(c) the date upon which the interest of the Upper Tier Partnership in 1290
L.P. has been sold or transferred pursuant to the terms of the 1290 L.P.
Agreement."
1.02 Partial Release of JMB/NYC Collateral. (a) Metropolis
hereby agrees that, immediately upon the closing (the "IPA Closing") of the
transactions under that certain Interest Purchase Agreement (as defined in
the Restructuring Agreement), it, along with JMB/NYC, shall, or shall cause
the appropriate parties to, execute and deliver to JMB/NYC (x) an escrow
release letter (attached hereto as Exhibit B) relating to that certain
Account Control Agreement (a true and correct copy of which is attached
hereto as Exhibit C), and (y) any other documentation necessary, to
effectuate a release from escrow at LaSalle Bank National Association
(successor to LaSalle National Trust, N.A.) and from the limitations set
forth in Section 12.2B of the limited partnership agreement of LTLP (or,
upon the liquidation of LTLP, of 1290 L.P.) of a portion of the "JMB
Collateral" (as such term is defined in the limited partnership agreement
of LTLP, or, upon the liquidation of LTLP, of 1290 L.P.) equal to
$4,460,715 (the "Release Amount") (calculated by multiplying 3/7 by
$10,000,000, plus $175,000). It is hereby agreed by the Parties that prior
to the consummation of the transactions under the Restructuring Agreement,
the Release Amount served as collateral for the obligations of the
Indemnitors under the Indemnification Agreement in respect of the 237
Property.
(b) Notwithstanding anything to the contrary contained
herein, it is hereby agreed by the Parties that the partial release of the
JMB Collateral set forth in the previous paragraph (a) shall not in any way
constitute a release of, or in any other way affect, the portion of such
collateral not released pursuant thereto.
SECTION 2
MISCELLANEOUS PROVISIONS
2.01 No Further Amendment. Except as expressly amended
hereby, the Indemnification Agreement shall remain in full force and
effect.
2.02 Counterparts. This Agreement may be executed in
counterparts, each of which when so executed shall together constitute one
and the same agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned have executed this
Amendment and Release Agreement as of the date and year first above
written.
METROPOLIS REALTY TRUST, INC.
By:
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Name:
Title:
PROPERTY PARTNERS, L.P.
By: Carlyle Investors, Inc., General Partner
By:
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Name:
Title:
CARLYLE-XIII ASSOCIATES, L.P.
By: Carlyle Investors, Inc., General Partner
By:
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Name:
Title:
CARLYLE-XIV ASSOCIATES, L.P.
By: Carlyle Investors, Inc., General Partner
By:
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Name:
Title:
Exhibit A to the Amendment and Release Agreement
Indemnification Agreement
TO BE PROVIDED
Exhibit B to the Amendment and Release Agreement
Escrow Release Letter
TO BE PROVIDED
Exhibit C to the Amendment and Release Agreement
Account Control Agreement
TO BE PROVIDED
