SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 8, 1996
JMB INCOME PROPERTIES, LTD. - XIII
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(Exact name of registrant as specified in its charter)
Illinois 0-19496 36-3426137
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(State or other) (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Organization
900 N. Michigan Avenue, Chicago, Illinois 60611-1575
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(Address of principal executive office)
Registrant's telephone number, including area code: (312) 915-1987
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MIAMI INTERNATIONAL MALL
MIAMI, FLORIDA
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS. JMB Income Properties, Ltd. -
XIII, an Illinois limited partnership (the "Partnership"), was a general
partner in JMB/Miami International Associates ("JMB/Miami"), which owned a 50%
partnership interest in West Dade County Associates ("West Dade"). The other
partners of JMB/Miami were IDS/JMB Balanced Income Growth, Ltd. ("IDS/JMB")
and Urban Shopping Centers, L.P. ("Urban"), both of which are affiliates of
the Partnership. On April 8, 1996, effective March 31, 1996, JMB/Miami was
voluntarily dissolved by agreement of its partners and its 50% ownership
interest in West Dade and related assets were distributed to its partners
based on their respective ownership percentages. Accordingly, the Partnership
acquired a direct 25% ownership interest in West Dade. The Partnership then
sold its entire 25% interest in West Dade as described below. West Dade owns
an interest in Miami International Mall, an enclosed regional shopping mall
containing approximately 976,000 square feet of space located in Miami,
Florida. Department stores include Sears (194,000 square feet), Mervyn's
(100,000 square feet), J.C. Penney (145,000 square feet) and Burdines (100,000
and 144,000 square feet),each of which owns its own store and a portion of the
parking area. At the time of sale, the mall was approximately 94% occupied.
On April 8, 1996, effective March 31, 1996, DeBartolo Realty Partnership,
L.P. ("DeBartolo"), the unaffiliated venture partner in West Dade, purchased
29.812% of the Partnership's interest (i.e., a 7.453% interest) in West Dade
for $4,005,624 (paid in cash at closing), subject to proration. DeBartolo
also assumed a proportionate share of the Partnership's share of obligations
and liabilities of West Dade from and after the effective date of the
transaction. DeBartolo is not affiliated with the Partnership or its general
partners, and the terms of the sale were determined by arm's-length
negotiations.
Concurrently, Urban exercised its right of first refusal and purchased
the remaining 70.188% of the Partnership's interest (i.e., a 17.547% interest)
in West Dade for $9,431,107 (paid in cash at closing), subject to proration.
Urban also assumed a proportionate share of the Partnership's share of
obligations and liabilities of West Dade from and after the effective date of
the transaction. The price of the interest sold to Urban was in proportion to
that sold to DeBartolo, and the other terms of the sale with Urban were based
on those applicable to the sale with DeBartolo. In addition, West Dade agreed
to indemnify the Partnership generally from and against claims and liabilities
incurred by the Partnership in connection with West Dade or its property after
the effective date of the sales.
The Partnership Agreement provides that the General Partners shall be
allocated from sale proceeds (net after expenses and retained working capital)
(1) the amount necessary to provide for the amount of cash distributions
accrued to them, but deferred as provided under the Partnership Agreement (2)
up to 2% of the selling price of the property being sold and properties
previously sold and (3) that the balance be allocated 85% to the Limited
Partners and 15% to the General Partners. However, the Limited Partners shall
be allocated 100% of such net sale proceeds until the Limited Partners (not
including the Special Limited Partner) (i) have been allocated cumulative cash
distributions from the Partnership's operations which, when combined with sale
or refinancing proceeds previously distributed under this clause (i), equal a
6% annual return on the Limited Partners' average capital investment (their
initial capital investment as reduced by sale or refinancing proceeds
previously distributed) for each year commencing with the third fiscal quarter
of 1987 and (ii) have been allocated cash distributions of sale or refinancing
proceeds in an amount equal to the Limited Partners' aggregate initial capital
investment in the Partnership. Notwithstanding the foregoing, payment of the
portion of the sale and refinancing proceeds allocable to the General Partners
pursuant to the above is deferred until such time as the Limited Partners have
received cash distributions of sale and refinancing proceeds and from
Partnership operations, in an amount equal to the Limited Partners' initial
capital investment in the Partnership plus a 9% annual return (on a non-
compounded basis) on the Limited Partners' average capital investment. The
Limited Partners have not yet received cash distributions of sale or
refinancing proceeds in an amount equal to their initial capital investment in
the Partnership. Therefore, no portion of the proceeds of this sale is
distributable to the General Partners at this time.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements - Not Applicable.
(b) Pro Forma Financial Information - Narrative.
The Partnership's investment in JMB/Miami was approximately $4,233,000 at
December 31, 1995. This investment was not consolidated for the Partnership's
financial statement reporting purposes. The Partnership's share of operations
of unconsolidated ventures was approximately $689,000 in 1995.
The effect on the Partnership's consolidated financial statements as a
result of the sale would be to eliminate the Partnership's investment in
JMB/Miami and to recognize a net gain on sale and liquidation of venture of
approximately $9,500,000 for financial reporting purposes. Accordingly, no
further share of the results of JMB/Miami's or West Dade's operations
subsequent to the date of sale would be reflected in 1996. The Partnership
also expects to recognize a gain on the sale for Federal income tax purposes.
(c) Exhibits
10.1 Purchase and Sale Agreement between JMB Income Properties,
Ltd. - XIII and Urban Shopping Centers, L.P. dated as of March 15, 1996.
10.2 Assignment of Partnership Interest Agreement between JMB
Income Properties, Ltd. - XIII and Urban Shopping Centers, L.P. dated as of
March 31, 1996.
10.3 Purchase and Sale Agreement between JMB Income Properties,
Ltd. - XIII and DeBartolo Realty Partnership, L.P. dated as of March 15, 1996.
10.4 Assignment of Partnership Interest Agreement between JMB
Income Properties, Ltd. - XIII and DeBartolo Realty Partnership, L.P. dated as
of March 31, 1996.
10.5 Dissolution Agreement between JMB Income Properties, Ltd.
- - - XIII, IDS/JMB Balanced Income Growth, Ltd. and Urban Shopping Centers, L.P.
dated as of March 31, 1996.
10.6 Indemnity Agreement dated as of April 1, 1996 by West Dade
County Associates for the benefit of JMB Income Properties, Ltd. - XIII and
IDS/JMB Balanced Income Growth, Ltd.
SIGNATURES
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 thereunto duly authorized.
JMB INCOME PROPERTIES, LTD. - XIII
By: JMB Realty Corporation
Managing General Partner
By: GAILEN J. HULL
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Gailen J. Hull
Senior Vice President
Dated: April 23, 1996
EXHIBIT 10.1.
Purchase and Sale Agreement between JMB Income Properties, Ltd. - XIII and
Urban Shopping Centers, L.P. dated as of March 15, 1996.
PURCHASE AND SALE AGREEMENT
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THIS PURCHASE AND SALE AGREEMENT (the "AGREEMENT") is made as of March
15, 1996 by JMB INCOME PROPERTIES, LTD.-XIII, an Illinois limited partnership,
which has an address for notice purposes hereunder at 900 North Michigan
Avenue, Chicago, Illinois 60611, (hereinafter referred to as "SELLER"), and
URBAN SHOPPING CENTERS, L.P., an Illinois limited partnership (hereinafter
referred to as "PURCHASER"), which has an address for notice purposes
hereunder at 900 North Michigan Avenue, Suite 1500, Chicago, Illinois 60611-
1580.
WITNESSETH:
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WHEREAS, Seller is the owner of a 17.547% interest in West Dade County
Associates, a Florida general partnership, and all rights, titles, interests,
benefits, privileges, obligations and liabilities related thereto as described
in EXHIBIT A, attached hereto and made a part hereof. As used herein, the
term "PARTNERSHIP INTEREST" shall have the meaning ascribed thereto in Exhibit
A; and
WHEREAS, Seller desires to sell and transfer the Partnership Interest to
Purchaser, and Purchaser agrees to take and accept same, all on the terms and
conditions set forth hereinbelow.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged by the parties hereto, said
parties agree as follows:
1. PURCHASE AND SALE. On the terms and conditions hereinafter
set forth, Seller will sell and transfer to Purchaser, and Purchaser will
purchase and accept from Seller, the Partnership Interest.
2. CONSIDERATION.
(a) AMOUNT. The purchase price to be paid to Seller by
Purchaser hereunder shall be $9,431,106.74 (the "PURCHASE PRICE"). Subject to
prorations hereunder, Purchaser shall also assume Seller's proportionate share
of all obligations and liabilities of the Partnership.
The Purchase Price and all obligations and
liabilities so assumed shall be allocated 20% to land and 80% to improvements
owned by the Partnership. Seller and Purchaser agree to consistently follow
the above allocation and to file Form 8594 with their respective federal tax
returns for the 1996 year in accordance with the above allocation.
(b) PAYMENT. The Purchase Price shall be paid by
federal funds wire transfer in legal tender of the United States of America
that is immediately available in Chicago, Illinois not later than 11 AM
Central Time on the Closing Date to the following account:
Name of Bank: Bank of America Illinois
Address: Chicago, Illinois
ABA Number: 071000039
Name of Account: JMB Income Properties, Ltd.-XIII
Account Number: 79-90569
Upon receipt of funds, notify: Andrea Bachman
Phone: (312) 915-2367
3. CLOSING. The closing of the transaction contemplated hereby
shall occur in Chicago, Illinois on April 8, 1996, but as of the closing of
business on March 31, 1996 (the "CLOSING DATE").
4. TRANSFERS. On the Closing Date, Seller shall assign and
transfer the Partnership Interest to Purchaser pursuant to the Assignment of
Partnership Interest that is attached hereto as Exhibit A (the "ASSIGNMENT").
5. EXPENSES. Each party shall be responsible for and shall pay
all fees, costs and expenses that it incurs in performing its obligations
hereunder and that in otherwise incur relative to the transaction described
herein.
6. PRORATIONS. The parties agree to the proration as set forth
on EXHIBIT B, attached hereto and made a part hereof. Except as set forth in
Exhibit B, there shall be no proration of any item of income or expense in
connection with the transaction described herein.
7. CONDITIONS
(a) SELLER. Seller's obligations hereunder are
conditioned upon the following:
(i) That Purchaser shall pay the Purchase Price
on the Closing Date as provided herein;
(ii) That Purchaser shall execute, deliver and
accept (as the case may be) the Assignment and the Five Party Consent and
Waiver Agreement that is attached hereto and made a part hereof as EXHIBIT C
(the "PARTNER CONSENT") on the Closing Date as provided herein;
(iii) That Seller shall obtain all necessary
consents to the transaction contemplated hereby from the parties identified in
Exhibit C, in the form of Exhibit C;
(iv) That Seller shall obtain all necessary
consents, authorizations and approvals to the transaction contemplated hereby
from The Prudential Insurance Company of America.
(v) That Purchaser shall furnish Seller with the
evidence of Purchaser's authority to enter into this Agreement and perform its
obligations hereunder as described in EXHIBIT D, attached hereto and made a
part hereof;
(vi) That Purchaser shall obtain and deliver to
Seller on the Closing Date the Indemnity Agreement that is attached hereto and
made a part hereof as EXHIBIT F from the general partners of the indemnitor
identified therein; and
(vii) That Purchaser shall have performed all of
its other obligations hereunder as and when required hereby.
(b) PURCHASER. Purchaser's obligations hereunder are
conditioned upon the following:
(i) That Seller shall execute and deliver the
Assignment and the Partner Consent on the Closing Date as provided herein;
(ii) That Seller shall obtain all necessary
consents to the transaction contemplated hereby from the parties identified in
EXHIBIT C, in the form of Exhibit C;
(iii) That Seller shall obtain all necessary
consents, authorizations and approvals to the transaction contemplated hereby
from The Prudential Insurance Company of America;
(iv) That Seller shall furnish Purchaser with the
evidence of Seller's authority to enter into this Agreement and perform its
obligations hereunder as described in EXHIBIT E, attached hereto and made a
part hereof;
(v) That Purchaser shall obtain and deliver to
Seller on the Closing Date the Indemnity Agreement that is attached hereto and
made a part hereof as EXHIBIT F from the general partners of the
indemnificator identified therein; and
(vi) That Seller shall have performed all of its
other obligations hereunder as and when required hereby.
8. BROKER. There is no broker involved in the transaction
contemplated hereby on behalf of either Seller or Purchaser. Seller and
Purchaser each agree to indemnify the other against its acts which give rise
to any claim for a broker's or finder's fee or commission with respect to said
transaction.
9. MISCELLANEOUS. No party hereto may assign any rights or
obligations under this Agreement without the prior written consent of the
other party. This Agreement (a) expresses the parties entire understanding
and agreement with respect to the subject matter hereof, all prior agreements
between the parties with respect to the subject matter hereof being merged
herein and extinguished; (b) shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective heirs, legal
representatives, successors and assigns; (c) may only be amended by written
agreement executed by all parties hereto; and (d) shall be governed by, and
shall be construed and enforced in accordance with, the laws of the State of
Florida. Each signatory hereto certifies that he or she is duly authorized
and empowered to sign and deliver this Agreement on behalf of all entities
named below on whose behalf he or she has so acted.
10. LIMITATION ON LIABILITY. No present or future advisor,
trustee, director, officer, partner, employee, beneficiary, shareholder,
participant or agent of or in Seller or Purchaser or any entity now or
hereafter having a direct or indirect ownership interest in Seller or
Purchaser shall have any personal liability, directly or indirectly, under or
in connection with this Agreement or any agreement made or entered into in
connection with this Agreement, or any amendment or amendments to any of the
foregoing made at any time or times, heretofore or hereafter, and all parties
hereto and their respective successors and assigns and, without limitation,
all other persons and entities, shall look solely to the property and assets
of Seller and Purchaser (as the case may be) for the payment of any claim
hereunder. For the purposes of this paragraph, in no event shall a deficit
capital account of any direct or indirect partner in Seller or Purchaser nor
any obligation of any direct or indirect partner in Seller or Purchaser to
restore a deficit capital account or to contribute capital to Seller or
Purchaser (or to any other partnership that is a direct or indirect partner
therein) at any time be deemed to be an asset or property of Seller or
Purchaser, and the parties hereto, their respective successors and assigns and
all other persons and entities shall have no right to collect, enforce or
proceed against or with respect to any such deficit capital account or
obligation to restore or contribute. The limitations of liability provided in
this paragraph are in addition to, and no in limitation of, any limitation on
liability applicable to Seller or Purchaser provided by law or by any other
contract, agreement or instrument.
11. DUE DILIGENCE. Purchaser acknowledges that (a) it is an
existing partner in the Partnership and will acquire the Partnership Interest
based solely upon its review of information in its own possession and Seller's
express representations and warranties set forth herein, and (b) except as is
expressly set forth in this Agreement, the sale of the Partnership Interest is
and shall be made without representation or warranty, whether express or
implied, by Seller.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER:
JMB INCOME PROPERTIES LTD.-XIII
an Illinois limited partnership
By: JMB Realty Corporation
a Delaware corporation,
its managing general partner
By: DENNIS M. QUINN
Name: Dennis M. Quinn
Title: Senior Vice President
PURCHASER:
URBAN SHOPPING CENTERS, L.P.
By: Urban Shopping Centers, Inc.,
its sole general partner
By:
Title: Senior Vice President
Attached: Exhibit A - Assignment of Partnership Interest
Exhibit B - Proration Schedule
Exhibit C - Five Party Consent and Waiver
Exhibit D - Authority of Seller
Exhibit E - Authority of Purchaser
Exhibit F - Indemnity Agreement
EXHIBIT A
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ASSIGNMENT OF PARTNERSHIP INTEREST
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THIS ASSIGNMENT OF PARTNERSHIP INTEREST (the "Assignment") is made as
of the close of business on the 31st day of March, 1996, by and between JMB
Income Properties, Ltd. - XIII, an Illinois limited partnership ("ASSIGNOR")
and Urban Shopping Centers, L.P., an Illinois limited partnership
("ASSIGNEE").
WITNESSETH:
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WHEREAS, Assignor is a general partner of West Dade County Associates
(the "PARTNERSHIP") organized and existing under and by virtue of the
documents listed on EXHIBIT "A", attached hereto and made a part hereof
(collectively, the "PARTNERSHIP AGREEMENT"); and
WHEREAS, pursuant to that certain Purchase and Sale Agreement dated
March 15, 1996 by and between Assignor and Assignee, (the "AGREEMENT"),
Assignor has agreed to sell and assign the Partnership Interest (as said term
is hereinafter defined) to Assignee, and Assignee has agreed to take and
accept the Partnership Interest from Assignor.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Assignor and Assignee, intending to be legally bound, hereby
agree as follows:
1. ASSIGNMENT. Assignor hereby conveys, transfers, assigns,
sets over and delivers unto Assignee (a) 70.188% of Assignor's right, title
and interest in and to the Partnership, being a 17.547% interest in the
profits, losses and capital of the Partnership, together with any and all
rights, benefits, privileges, obligations and liabilities appertaining
thereto, including, but not limited to, Assignor's right, title and interest
as a general partner of the Partnership in and to the profits, surplus,
losses, capital, cash flow, rentals, contract rights, cash, accounts,
receivables, escrows, distributions, proceeds, claims, chooses in action and
other assets of the Partnership, (b) all partner loans made by Assignor to the
Partnership, if any, (c) all tax deductions and tax benefits for calendar year
1996 relative to the Partnership, and (d) right to participate in the
management, administration and control of the Partnership and its business and
affairs to the full extent provided for in the Partnership Agreement
(collectively, the "PARTNERSHIP INTEREST"), but in all cases subject to and as
adjusted under the proration provisions contained in the Agreement, reserving
unto itself no rights or interests therein whatsoever.
TO HAVE AND TO HOLD the same unto Assignee and its heirs, legal
representatives, successors and assigns, from and after the date hereof to its
own proper use forever, on and subject to the terms, covenants, conditions and
provisions contained in the Partnership Agreement and herein.
2. ACCEPTANCE. Assignee hereby (a) takes and accepts the
foregoing assignment, (b) adopts and agrees to be bound by all of the terms,
conditions, covenants and provisions of the Partnership Agreement, (c) assumes
and agrees to observe, perform, pay, comply with and discharge all of the
obligations of the Partnership and of Assignor, as a general partner of the
Partnership, and (d) agrees to be a general partner thereof for all purposes,
all in the place and stead of Assignor from and after the date hereof, but not
before.
3. REPRESENTATIONS. Assignor covenants, warrants and represents
that it is the true and lawful owner of all of the rights, title, interests,
options, benefits, powers and privileges hereby assigned, including but not
limited to 17.547% of the profits, losses and capital of the Partnership as
provided in the Partnership Agreement; that it has good title to same; that it
alone has the lawful right and full power and authority to assign and transfer
the same in the manner and form aforesaid; that no other person, firm or
corporation has any right, title, or interest therein; that same are free of
all liens, encumbrances, charges and security interests other than the
security interests granted under Article XXVI of the Partnership Agreement;
and that it will warrant and defend title to same to Assignee against the
claims and demands of all persons.
Assignor further covenants, warrants and represents that
there is no litigation pending or threatened in any court or jurisdiction
relative to the Partnership Interest.
4. DUE DILIGENCE. Assignee acknowledges that (a) it is an
existing partner in the Partnership and is acquiring the Partnership Interest
based solely upon its review of information in its own possession and
Assignor's express representations and warranties set forth herein, and (b)
except as is expressly set forth in this Assignment, the sale of the
Partnership Interest is and shall be made without representation or warranty,
whether express or implied, by Assignor.
5. NO CHANGE. Nothing contained herein is intended to modify,
alter or affect the allocation of rights, duties, obligations and liability of
Assignor and Assignee under the Partnership Agreement with respect to all
periods prior to the date hereof that is provided for under the Partnership
Agreement.
6. FURTHER ASSURANCES. Assignor and Assignee agree that they
will cooperate with each other and will make, execute, acknowledge, deliver,
record and file, or cause to be made, executed, acknowledged, delivered,
recorded and filed, at such times and places as the other may reasonably deem
necessary, all other and further documents and instruments, and will take all
other and further actions, as the other may reasonably request from time to
time in order to create, perfect, preserve and/or confirm the interest in and
title to the property and rights hereby assigned and transferred to Assignee
and Assignee's agreements in Paragraph 2 hereof, and otherwise to effectuate
the purposes and provisions of this Assignment.
7. AUTHORIZATION. Each signatory hereto certifies that he or
she is duly authorized and empowered to sign and deliver this Assignment on
behalf of all entities named below on whose behalf he or she has so acted.
8. GOVERNING LAWS/SUCCESSORS AND ASSIGNS. This Assignment shall
be governed by, and shall be construed and enforced in accordance with, the
laws of the state of formation of the Partnership, and shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective
heirs, legal representatives, successors and assigns.
9. AMENDMENT. No purported modification of this Assignment
shall be valid unless the same is in writing and signed by Assignor and
Assignee.
10. LIMITATION ON LIABILITY. No present or future advisor,
trustee, director, officer, partner, employee, beneficiary, shareholder,
participant or agent of or in Assignor or Assignee or any entity now or
hereafter having a direct or indirect ownership interest in Assignor or
Assignee shall have any personal liability, directly or indirectly, under or
in connection with this Assignment or any agreement made or entered into in
connection with this Assignment, or any amendment or amendments to any of the
foregoing made at any time or times, heretofore or hereafter, and all parties
hereto and their respective successors and assigns and, without limitation,
all other persons and entities, shall look solely to the property and assets
of Assignor and Assignee (as the case may be) for the payment of any claim
hereunder. For the purposes of this paragraph, in no event shall a deficit
capital account of any direct or indirect partner in Assignor or Assignee nor
any obligation of any direct or indirect partner in Assignor or Assignee to
restore a deficit capital account or to contribute capital to Assignor or
Assignee (or to any other partnership that is a direct or indirect partner
therein) at any time be deemed to be an asset or property of Assignor or
Assignee, and the parties hereto, their respective successors and assigns and
all other persons and entities shall have no right to collect, enforce or
proceed against or with respect to any such deficit capital account or
obligation to restore or contribute. The limitations of liability provided in
this paragraph are in addition to, and not in limitation of, any limitation on
liability applicable to Assignor or Assignee provided by law or by any other
contract, agreement or instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
to be effective as of the date first above-written.
ASSIGNOR:
JMB INCOME PROPERTIES LTD.-XIII
an Illinois limited partnership
By: JMB Realty Corporation
a Delaware corporation,
its managing general partner
By:
Name:
Title:
ASSIGNEE:
URBAN SHOPPING CENTERS, L.P.
By: Urban Shopping Centers, Inc.,
its sole general partner
By:
Title:
Attached: Exhibit A (List of Partnership Documents)
EXHIBIT A
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PARTNERSHIP AGREEMENT
Consisting of all agreements, modifications, supplements,
and amendments of the parties listed below relating to
West Dade County Associates, a Florida general partnership
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1. Restatement and Fourth Amendment to Joint Venture Agreement of West
Dade County Associates by and between DeBartolo-Miami Associates, Flomall
Development, Inc., and JMB/Miami International Associates, Inc., dated
February 28, 1989.
2. First Amendment to Restatement and Fourth Amendment to Joint Venture
Agreement of West Dade Associates, a Florida general partnership, by and
between DeBartolo-Miami Associates, an Ohio general partnership, and JMB/Miami
International Associates, dated June 30, 1992.
3. Second Amendment to Restatement and Fourth Amendment to Joint Venture
Agreement of West Dade County Associates, a Florida general partnership, by
and among Marie Denise DeBartolo York, Lisa Marie DeBartolo Revocable Trust,
Tiffanie Lynne DeBartolo Revocable Trust, Edward J. DeBartolo Trust No. 7,
Edward J. DeBartolo Trust No. 8, M-I Mall, Inc., DeBartolo-Miami Associates
and JMB/Miami International Associates.
4. Partner Consent dated October 13, 1993 by JMB/Miami International
Associates, countersigned by DeBartolo-Miami Associates, Marie Denise
DeBartolo York, and the trustees of the Lisa Marie DeBartolo Revocable Trust,
the Tiffanie Lynne DeBartolo Revocable Trust, and Edward J. DeBartolo Trust
Nos. 7 and 8.
5. Letter dated July 12, 1995 from Urban Shopping Centers, Inc. to
DeBartolo Realty Partnership, L.P.
6. Letter dated December 31, 1995 from JMB/Miami International
Associates to DeBartolo Properties Management, Inc.
EXHIBIT B
---------
West Dade County Associates
Purchase and Sale Agreement
Proration of Non Real Estate Assets & Liabilities
March 31, 1996
Total non real estate assets $1,260,816
Total non real estate liabilities (930,816)
----------
330,000
Pro rata distribution to partners 3/29 (330,000)
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Proration $ 0
==========
The prorations hereunder have been made on a preliminary basis on information
and estimates prepared by DeBartolo Realty Partnership, L.P. Seller shall
have the right to verify that the foregoing correctly and accurately sets
forth all non-real estate assets and all non-real estate liabilities of West
Dade County Associates as of March 31, 1996, within 60 days after the closing
hereunder. If the foregoing amounts are incorrect or inaccurate in any
respect, same shall be corrected, the prorations hereunder shall be adjusted,
and any amounts due from one party to the other shall be paid promptly. The
parties will cooperate with each other in good faith to finalize such
prorations as soon as reasonably possible (and will provide each other with
reasonable access to appropriate books and records and financial information
in connection therewith). The parties agree that, in no event shall any
proration calculations be based on West Dade County Associates retaining or
holding any reserves after March 31, 1996.
EXHIBIT C
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FIVE PARTY CONSENT AND WAIVER AGREEMENT
----------------------------------------
March 29, 1996
RE: West Dade County Associates, a Florida general partnership (the
"JOINT VENTURE") composed of JMB/Miami International Associates and DeBartolo
Realty Partnership, L.P. ("DeBARTOLO")
MIAMI INTERNATIONAL MALL, DADE COUNTY, FLORIDA
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The undersigned parties consent to (a) JMB/Miami International Associates'
("JMB/MIAMI") distribution by assignment of (a) a 25% interest in the Joint
Venture to JMB Income Properties, Ltd.-XIII, (b) a 2.547% interest in the
Joint Venture to IDS/JMB Balanced Income Growth, Ltd., and (c) a 22.453%
interest in the Joint Venture to Urban Shopping Centers, L.P., in complete
liquidation of said parties' respective interests in JMB/Miami, and (b) the
subsequent assignment (i) of a 17.547% interest in the Joint Venture by JMB
Income Properties, Ltd.-XIII to Urban Shopping Centers, L.P., ("URBAN"), (ii)
of a 7.453% interest in the Joint Venture by JMB Income Properties, Ltd.-XIII
to DeBartolo Realty Partnership, L.P., and (iii) a 2.547% interest in the
Joint Venture by IDS/JMB Balanced Income Growth, Ltd. to DeBartolo Realty
Partnership, L.P.
It is further agreed that (x) the Joint Venture shall continue in full force
and effect notwithstanding any assignment described herein, whether occurring
now or in the future, (y) following the aforesaid assignments, the only
partners of the Joint Venture shall be DeBartolo, who shall thereupon hold a
60% profits in the Joint Venture, and Urban, who shall thereupon hold a 40%
profits interest in the Joint Venture, with all rights and obligations
appertaining thereto, and each shall recognize the other as such, and (z) each
of the undersigned parties hereby waives (1) any and all restrictions and
limitations of any nature whatsoever relating to the aforedescribed
assignments; (2) any obligation of any person or entity to deliver to any of
the undersigned any notices, written or oral, or any documents or other
writings relating thereto; (3) any rights of any of the undersigned parties
which would otherwise arise as a direct or indirect result of the aforesaid
transactions; (4) any right to dissolve, terminate or liquidate the Joint
Venture as a result of the aforesaid transactions; and (5) any option to
purchase, right of first refusal, right of first offer, or any similar rights
that it may have as the result of or in connection with the aforesaid
transactions.
Each of the undersigned parties agrees that by executing this agreement, the
aforesaid transactions can be consummated without any further approvals,
waivers or releases being given by any of the undersigned.
Each of the undersigned parties further agree that the documents listed in
EXHIBIT A, attached hereto and made a part hereof, constitute all of the
agreements, whether oral or written, concerning the Joint Venture, that same
are in full force and effect, and have not been amended, modified,
supplemented, restated, and/or extended except as set forth in Exhibit A
hereto.
Each of the undersigned parties hereby state that to the best of their
knowledge and belief, there is no default by any other partner under the
documents referred to in Exhibit A hereto, and no event has occurred, which,
with the giving of notice, the passage of time, or both, would constitute a
default under said documents.
In the event of any conflict between the provisions of this agreement and the
provisions of the documents referred to in Exhibit A hereto, the provisions of
this agreement shall govern.
This agreement shall be governed by, and shall be construed and enforced in
accordance with, the laws of the State of Florida. No purported modification
of this agreement shall be valid unless the same is in writing and signed by
all parties hereto. Each signatory hereto certifies that he or she is duly
authorized and empowered to sign this agreement on behalf of all entities
named below on whose behalf he or she has so acted.
This agreement may be executed in multiple counterparts, each of which, when
so executed and delivered, shall be deemed an original, and all of which shall
together constitute one and the same agreement, and shall be binding on the
signatories; and the signature of any of the parties hereto to any counterpart
shall be deemed a signature to, and may be appended to, any other counterpart.
The provisions of this agreement shall be binding upon the undersigned parties
and their respective successors and assigns, and shall inure to the benefit of
all of the undersigned parties and their respective lenders, successors and
assigns.
DeBARTOLO REALTY PARTNERSHIP, L.P., JMB INCOME PROPERTIES LTD.-XIII,
a Delaware limited partnership an Illinois limited partnership
By: DeBartolo Realty Corporation, By: JMB Realty Corporation,
an Ohio corporation, a Delaware corporation,
its Managing General Partner its Managing General Partner
By: KIM A. RIECK By:
Kim A. Rieck, Name:
Sr. Vice President Title:
JMB/MIAMI INTERNATIONAL ASSOCIATES, IDS/JMB BALANCED INCOME
an Illinois general partnership GROWTH, LTD.,
an Illinois limited partnership
By: JMB Income Properties Ltd.-XIII, By: Income Growth Managers, Inc.,
an Illinois limited partnership, an Illinois corporation,
a general partner sole general partner
By: JMB Realty Corporation By:
a Delaware corporation, Name:
its managing general partner Title:
By:
Name:
Title:
URBAN SHOPPING CENTERS, L.P.
By: Urban Shopping Centers, Inc.,
its sole general partner
By:
Title:
EXHIBIT A
---------
PARTNERSHIP AGREEMENT
Consisting of all agreements, modifications, supplements,
and amendments of the parties listed below relating to
West Dade County Associates, a Florida general partnership
-----------------------------------------------------------
1. Restatement and Fourth Amendment to Joint Venture Agreement of West
Dade County Associates by and between DeBartolo-Miami Associates, Flomall
Development, Inc., and JMB/Miami International Associates, Inc., dated
February 28, 1989.
2. First Amendment to Restatement and Fourth Amendment to Joint Venture
Agreement of West Dade Associates, a Florida general partnership, by and
between DeBartolo-Miami Associates, an Ohio general partnership, and JMB/Miami
International Associates, dated June 30, 1992.
3. Second Amendment to Restatement and Fourth Amendment to Joint Venture
Agreement of West Dade County Associates, a Florida general partnership, by
and among Marie Denise DeBartolo York, Lisa Marie DeBartolo Revocable Trust,
Tiffanie Lynne DeBartolo Revocable Trust, Edward J. DeBartolo Trust No. 7,
Edward J. DeBartolo Trust No. 8, M-I Mall, Inc., DeBartolo-Miami Associates
and JMB/Miami International Associates.
4. Partner Consent dated October 13, 1993 by JMB/Miami International
Associates, countersigned by DeBartolo-Miami Associates, Marie Denise
DeBartolo York, and the trustees of the Lisa Marie DeBartolo Revocable Trust,
the Tiffanie Lynne DeBartolo Revocable Trust, and Edward J. DeBartolo Trust
Nos. 7 and 8.
5. Letter dated July 12, 1995 from Urban Shopping Centers, Inc. to
DeBartolo Realty Partnership, L.P.
6. Letter dated December 31, 1995 from JMB/Miami International Associates
to DeBartolo Properties Management, Inc.
EXHIBIT D
---------
JMB/INCOME PROPERTIES, LTD. - XIII
- - ----------------------------------
1. Certified Agreement of Limited Partnership
2. Certificate of Limited Partnership - Illinois
3. Certificate of Existence - Illinois
4. Certified Application to Transact Business in Florida
5. Certificate of Status - Florida
JMB REALTY CORPORATION
- - ----------------------
6. Certified Articles of Incorporation and By-Laws
7. Certificate of Incorporation
8. Good Standing Certificate - Delaware
9. Certified Application to Transact Business in Florida
10. Certificate of Status - Florida
11. Certified Corporate Resolutions
12. Certificate of Incumbency
EXHIBIT E
---------
URBAN SHOPPING CENTERS, L.P.
- - ----------------------------
1. Certified Agreement of Limited Partnership
2. Certificate of Limited Partnership
3. Certificate of Existence - Illinois
4. Certified Application to Transact Business in Florida
5. Certificate of Status - Florida
URBAN SHOPPING CENTERS, INC.
- - -----------------------------
6. Certified Articles of Incorporation and By-Laws
7. Good Standing Certificate - Maryland
8. Certified Application to Transact Business in Florida
9. Certificate of Status - Florida
10. Certified Corporate Resolutions
11. Certificate of Incumbency
EXHIBIT 10.2
Assignment of Partnership Interest Agreement between JMB Income Properties,
Ltd. - XIII and Urban Shopping Centers, L.P. dated as of March 31, 1996.
ASSIGNMENT OF PARTNERSHIP INTEREST
-----------------------------------
THIS ASSIGNMENT OF PARTNERSHIP INTEREST (the "ASSIGNMENT") is made as of
the close of business on the 31st day of March, 1996, by and between JMB
Income Properties, Ltd.-XIII, an Illinois limited partnership ("ASSIGNOR") and
Urban Shopping Centers, L.P., an Illinois limited partnership ("ASSIGNEE").
WITNESSETH:
----------
WHEREAS, Assignor is a general partner of West Dade County Associates
(the "PARTNERSHIP") organized and existing under and by virtue of the
documents listed on EXHIBIT "A", attached hereto and made a part hereof
(collectively, the "PARTNERSHIP AGREEMENT"); and
WHEREAS, pursuant to that certain Purchase and Sale Agreement dated March
15, 1996 by and between Assignor and Assignee, (the "AGREEMENT"), Assignor has
agreed to sell and assign the Partnership Interest (as said term is
hereinafter defined) to Assignee, and Assignee has agreed to take and accept
the Partnership Interest from Assignor.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Assignor and Assignee, intending to be legally bound, hereby
agree as follows:
1. ASSIGNMENT. Assignor hereby conveys, transfers, assigns, sets
over and delivers unto Assignee (a) 70.188% of Assignor's right, title and
interest in and to the Partnership, being a 17.547% interest in the profits,
losses and capital of the Partnership, together with any and all rights,
benefits, privileges, obligations and liabilities appertaining thereto,
including, but not limited to, Assignor's right, title and interest as a
general partner of the Partnership in and to the profits, surplus, losses,
capital, cash flow, rentals, contract rights, cash, accounts, receivables,
escrows, distributions, proceeds, claims, chooses in action and other assets
of the Partnership, (b) all partner loans made by Assignor to the Partnership,
if any, (c) all tax deductions and tax benefits for calendar year 1996
relative to the Partnership, and (d) right to participate in the management,
administration and control of the Partnership and its business and affairs to
the full extent provided for in the Partnership Agreement (collectively, the
"PARTNERSHIP INTEREST"), but in all cases subject to and as adjusted under the
proration provisions contained in the Agreement, reserving unto itself no
rights or interests therein whatsoever.
TO HAVE AND TO HOLD the same unto Assignee and its heirs, legal
representatives, successors and assigns, from and after the date hereof to its
own proper use forever, on and subject to the terms, covenants, conditions and
provisions contained in the Partnership Agreement and herein.
2. ACCEPTANCE. Assignee hereby (a) takes and accepts the
foregoing assignment, (b) adopts and agrees to be bound by all of the terms,
conditions, covenants and provisions of the Partnership Agreement, (c) assumes
and agrees to observe, perform, pay, comply with and discharge all of the
obligations of the Partnership and of Assignor, as a general partner of the
Partnership, and (d) agrees to be a general partner thereof for all purposes,
all in the place and stead of Assignor from and after the date hereof, but not
before.
3. REPRESENTATIONS. Assignor covenants, warrants and represents
that it is the true and lawful owner of all of the rights, title, interests,
options, benefits, powers and privileges hereby assigned, including but not
limited to 17.547% of the profits, losses and capital of the Partnership as
provided in the Partnership Agreement; that it has good title to same; that it
alone has the lawful right and full power and authority to assign and transfer
the same in the manner and form aforesaid; that no other person, firm or
corporation has any right, title, or interest therein; that same are free of
all liens, encumbrances, charges and security interests other than the
security interests granted under Article XXVI of the Partnership Agreement;
and that it will warrant and defend title to same to Assignee against the
claims and demands of all persons.
Assignor further covenants, warrants and represents that there
is no litigation pending or threatened in any court or jurisdiction relative
to the Partnership Interest.
4. DUE DILIGENCE. Assignee acknowledges that (a) it is an
existing partner in the Partnership and is acquiring the Partnership Interest
based solely upon its review of information in its own possession and
Assignor's express representations and warranties set forth herein, and (b)
except as is expressly set forth in this Assignment, the sale of the
Partnership Interest is and shall be made without representation or warranty,
whether express or implied, by Assignor.
5. NO CHANGE. Nothing contained herein is intended to modify,
alter or affect the allocation of rights, duties, obligations and liability of
Assignor and Assignee under the Partnership Agreement with respect to all
periods prior to the date hereof that is provided for under the Partnership
Agreement.
6. FURTHER ASSURANCES. Assignor and Assignee agree that they will
cooperate with each other and will make, execute, acknowledge, deliver, record
and file, or cause to be made, executed, acknowledged, delivered, recorded and
filed, at such times and places as the other may reasonably deem necessary,
all other and further documents and instruments, and will take all other and
further actions, as the other may reasonably request from time to time in
order to create, perfect, preserve and/or confirm the interest in and title to
the property and rights hereby assigned and transferred to Assignee and
Assignee's agreements in Paragraph 2 hereof, and otherwise to effectuate the
purposes and provisions of this Assignment.
7. AUTHORIZATION. Each signatory hereto certifies that he or she
is duly authorized and empowered to sign and deliver this Assignment on behalf
of all entities named below on whose behalf he or she has so acted.
8. GOVERNING LAWS/SUCCESSORS AND ASSIGNS. This Assignment shall
be governed by, and shall be construed and enforced in accordance with, the
laws of the state of formation of the Partnership, and shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective
heirs, legal representatives, successors and assigns.
9. AMENDMENT. No purported modification of this Assignment shall
be valid unless the same is in writing and signed by Assignor and Assignee.
10. LIMITATION ON LIABILITY. No present or future advisor, trustee,
director, officer, partner, employee, beneficiary, shareholder, participant or
agent of or in Assignor or Assignee or any entity now or hereafter having a
direct or indirect ownership interest in Assignor or Assignee shall have any
personal liability, directly or indirectly, under or in connection with this
Assignment or any agreement made or entered into in connection with this
Assignment, or any amendment or amendments to any of the foregoing made at any
time or times, heretofore or hereafter, and all parties hereto and their
respective successors and assigns and, without limitation, all other persons
and entities, shall look solely to the property and assets of Assignor and
Assignee (as the case may be) for the payment of any claim hereunder. For the
purposes of this paragraph, in no event shall a deficit capital account of any
direct or indirect partner in Assignor or Assignee nor any obligation of any
direct or indirect partner in Assignor or Assignee to restore a deficit
capital account or to contribute capital to Assignor or Assignee (or to any
other partnership that is a direct or indirect partner therein) at any time be
deemed to be an asset or property of Assignor or Assignee, and the parties
hereto, their respective successors and assigns and all other persons and
entities shall have no right to collect, enforce or proceed against or with
respect to any such deficit capital account or obligation to restore or
contribute. The limitations of liability provided in this paragraph are in
addition to, and not in limitation of, any limitation on liability applicable
to Assignor or Assignee provided by law or by any other contract, agreement or
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment to
be effective as of the date first above-written.
ASSIGNOR:
JMB INCOME PROPERTIES LTD.-XIII
an Illinois limited partnership
By: JMB Realty Corporation
a Delaware corporation,
its managing general partner
By: DENNIS M. QUINN
Name: Dennis M. Quinn
Title: Sr. Vice President
ASSIGNEE:
URBAN SHOPPING CENTERS, L.P.
By: Urban Shopping Centers, Inc.,
its sole general partner
By:
Title: Sr. Vice President
Attached: Exhibit A (List of Partnership Documents)
EXHIBIT A
---------
PARTNERSHIP AGREEMENT
Consisting of all agreements, modifications, supplements,
and amendments of the parties listed below relating to
West Dade County Associates, a Florida general partnership
-----------------------------------------------------------
1. Restatement and Fourth Amendment to Joint Venture Agreement of West
Dade County Associates by and between DeBartolo-Miami Associates, Flomall
Development, Inc., and JMB/Miami International Associates, Inc., dated
February 28, 1989.
2. First Amendment to Restatement and Fourth Amendment to Joint Venture
Agreement of West Dade Associates, a Florida general partnership, by and
between DeBartolo-Miami Associates, an Ohio general partnership, and JMB/Miami
International Associates, dated June 30, 1992.
3. Second Amendment to Restatement and Fourth Amendment to Joint Venture
Agreement of West Dade County Associates, a Florida general partnership, by
and among Marie Denise DeBartolo York, Lisa Marie DeBartolo Revocable Trust,
Tiffanie Lynne DeBartolo Revocable Trust, Edward J. DeBartolo Trust No. 7,
Edward J. DeBartolo Trust No. 8, M-I Mall, Inc., DeBartolo-Miami Associates
and JMB/Miami International Associates.
4. Partner Consent dated October 13, 1993 by JMB/Miami International
Associates, countersigned by DeBartolo-Miami Associates, Marie Denise
DeBartolo York, and the trustees of the Lisa Marie DeBartolo Revocable Trust,
the Tiffanie Lynne DeBartolo Revocable Trust, and Edward J. DeBartolo Trust
Nos. 7 and 8.
5. Letter dated July 12, 1995 from Urban Shopping Centers, Inc. to
DeBartolo Realty Partnership, L.P.
6. Letter dated December 31, 1995 from JMB/Miami International
Associates to DeBartolo Properties Management, Inc.
EXHIBIT 10.3 Purchase and Sale Agreement between JMB Income Properties,
Ltd. - XIII and DeBartolo Realty Partnership, L.P. dated as of March 15, 1996.
PURCHASE AND SALE AGREEMENT
---------------------------
THIS PURCHASE AND SALE AGREEMENT (the "AGREEMENT") is made as of March
15, 1996 by JMB INCOME PROPERTIES, LTD.-XIII, an Illinois limited partnership,
which has an address for notice purposes hereunder at 900 North Michigan
Avenue, Chicago, Illinois 60611, (hereinafter referred to as "SELLER"), and
DeBARTOLO REALTY PARTNERS, L.P., a Delaware limited partnership (hereinafter
referred to as "PURCHASER"), which has an address for notice purposes
hereunder at 7655 Market Street, Youngstown, Ohio 44513.
WITNESSETH:
----------
WHEREAS, Seller is the owner of a 17.453% interest in West Dade County
Associates, a Florida general partnership, and all rights, titles, interests,
benefits, privileges, obligations and liabilities related thereto as described
in EXHIBIT A, attached hereto and made a part hereof. As used herein, the
term "PARTNERSHIP INTEREST" shall have the meaning ascribed thereto in Exhibit
A; and
WHEREAS, Seller desires to sell and transfer the Partnership Interest to
Purchaser, and Purchaser agrees to take and accept same, all on the terms and
conditions set forth hereinbelow.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged by the parties hereto, said
parties agree as follows:
1. PURCHASE AND SALE. On the terms and conditions hereinafter
set forth, Seller will sell and transfer to Purchaser, and Purchaser will
purchase and accept from Seller, the Partnership Interest.
2. CONSIDERATION.
(a) AMOUNT. The purchase price to be paid to Seller by
Purchaser hereunder shall by $4,005,624.17 (the "PURCHASE PRICE"). Subject to
prorations hereunder, Purchaser shall also assume Seller's proportionate share
of all obligations and liabilities of the Partnership.
The Purchase Price and all obligations and
liabilities so assumed shall be allocated 20% to land and 80% to improvements
owned by the Partnership. Seller and Purchaser agree to consistently follow
the above allocation and to file Form 8594 with their respective federal tax
returns for the 1996 year in accordance with the above allocation.
(b) PAYMENT. The Purchase Price shall be paid by
federal funds wire transfer in legal tender of the United States of America
that is immediately available in Chicago, Illinois not later than 11 AM
Central Time on the Closing Date to the following account:
Name of Bank: Bank of America Illinois
Address: Chicago, Illinois
ABA Number: 071000039
Name of Account: JMB Income Properties, Ltd.-XIII
Account Number: 74-90569
Upon receipt of funds, notify: Andrea Bachman
Phone: (312) 915-2367
3. CLOSING. The closing of the transaction contemplated hereby
shall occur in Chicago, Illinois on April 8, 1996, but as of the closing of
business on March 31, 1996 (the "CLOSING DATE").
4. TRANSFERS. On the Closing Date, Seller shall assign and
transfer the Partnership Interest to Purchaser pursuant to the Assignment of
Partnership Interest that is attached hereto as Exhibit A (the "ASSIGNMENT").
5. EXPENSES. Each party shall be responsible for and shall pay
all fees, costs and expenses that it incurs in performing its obligations
hereunder and that in otherwise incur relative to the transaction described
herein.
6. PRORATIONS. The parties agree to the proration as set forth
on EXHIBIT B, attached hereto and made a part hereof. Except as set forth in
Exhibit B, there shall be no proration of any item of income or expense in
connection with the transaction described herein.
7. CONDITIONS
(a) SELLER. Seller's obligations hereunder are
conditioned upon the following:
(i) That Purchaser shall pay the Purchase Price
on the Closing Date as provided herein;
(ii) That Purchaser shall execute, deliver and
accept (as the case may be) the Assignment and the Five Party Consent and
Waiver Agreement that is attached hereto and made a part hereof as EXHIBIT C
(the "PARTNER CONSENT") on the Closing Date as provided herein;
(iii) That Seller shall obtain all necessary
consents to the transaction contemplated hereby from the parties identified in
Exhibit C, in the form of Exhibit C;
(iv) That Seller shall obtain all necessary
consents, authorizations and approvals to the transaction contemplated hereby
from The Prudential Insurance Company of America.
(v) That Purchaser shall furnish Seller with the
evidence of Purchaser's authority to enter into this Agreement and perform its
obligations hereunder as described in EXHIBIT D, attached hereto and made a
part hereof;
(vi) That Purchaser shall obtain and deliver to
Seller on the Closing Date the Indemnity Agreement that is attached hereto and
made a part hereof as EXHIBIT F from the general partners of the indemnitor
identified therein; and
(vii) That Purchaser shall have performed all of
its other obligations hereunder as and when required hereby.
(b) PURCHASER. Purchaser's obligations hereunder are
conditioned upon the following:
(i) That Seller shall execute and deliver the
Assignment and the Partner Consent on the Closing Date as provided herein;
(ii) That Seller shall obtain all necessary
consents to the transaction contemplated hereby from the parties identified in
EXHIBIT C, in the form of Exhibit C;
(iii) That Seller shall obtain all necessary
consents, authorizations and approvals to the transaction contemplated hereby
from The Prudential Insurance Company of America;
(iv) That Seller shall furnish Purchaser with the
evidence of Seller's authority to enter into this Agreement and perform its
obligations hereunder as described in EXHIBIT E, attached hereto and made a
part hereof;
(v) That Purchaser shall obtain and deliver to
Seller on the Closing Date the Indemnity Agreement that is attached hereto and
made a part hereof as EXHIBIT F from the general partners of the
indemnificator identified therein; and
(vi) That Seller shall have performed all of its
other obligations hereunder as and when required hereby.
8. BROKER. There is no broker involved in the transaction
contemplated hereby on behalf of either Seller or Purchaser. Seller and
Purchaser each agree to indemnify the other against its acts which give rise
to any claim for a broker's or finder's fee or commission with respect to said
transaction.
9. MISCELLANEOUS. No party hereto may assign any rights or
obligations under this Agreement without the prior written consent of the
other party. This Agreement (a) expresses the parties entire understanding
and agreement with respect to the subject matter hereof, all prior agreements
between the parties with respect to the subject matter hereof being merged
herein and extinguished; (b) shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective heirs, legal
representatives, successors and assigns; (c) may only be amended by written
agreement executed by all parties hereto; and (d) shall be governed by, and
shall be construed and enforced in accordance with, the laws of the State of
Florida. Each signatory hereto certifies that he or she is duly authorized
and empowered to sign and deliver this Agreement on behalf of all entities
named below on whose behalf he or she has so acted.
10. LIMITATION ON LIABILITY. No present or future advisor,
trustee, director, officer, partner, employee, beneficiary, shareholder,
participant or agent of or in Seller or Purchaser or any entity now or
hereafter having a direct or indirect ownership interest in Seller or
Purchaser shall have any personal liability, directly or indirectly, under or
in connection with this Agreement or any agreement made or entered into in
connection with this Agreement, or any amendment or amendments to any of the
foregoing made at any time or times, heretofore or hereafter, and all parties
hereto and their respective successors and assigns and, without limitation,
all other persons and entities, shall look solely to the property and assets
of Seller and Purchaser (as the case may be) for the payment of any claim
hereunder. For the purposes of this paragraph, in no event shall a deficit
capital account of any direct or indirect partner in Seller or Purchaser nor
any obligation of any direct or indirect partner in Seller or Purchaser to
restore a deficit capital account or to contribute capital to Seller or
Purchaser (or to any other partnership that is a direct or indirect partner
therein) at any time be deemed to be an asset or property of Seller or
Purchaser, and the parties hereto, their respective successors and assigns and
all other persons and entities shall have no right to collect, enforce or
proceed against or with respect to any such deficit capital account or
obligation to restore or contribute. The limitations of liability provided in
this paragraph are in addition to, and no in limitation of, any limitation on
liability applicable to Seller or Purchaser provided by law or by any other
contract, agreement or instrument.
11. DUE DILIGENCE. Purchaser acknowledges that (a) it is an
existing partner in the Partnership and will acquire the Partnership Interest
based solely upon its review of information in its own possession and Seller's
express representations and warranties set forth herein, and (b) except as is
expressly set forth in this Agreement, the sale of the Partnership Interest is
and shall be made without representation or warranty, whether express or
implied, by Seller.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER:
JMB INCOME PROPERTIES LTD.-XIII
an Illinois limited partnership
By: JMB Realty Corporation
a Delaware corporation,
its managing general partner
By: DENNIS M. QUINN
Name: Dennis M. Quinn
Title: Senior Vice President
PURCHASER:
DeBARTOLO REALTY PARTNERSHIP, L.P.
By: DeBartolo Realty Corporation,
general partner
By: KIM A. RIECK
Kim A. Rieck, Senior Vice President
Attached: Exhibit A - Assignment of Partnership Interest
Exhibit B - Proration Schedule
Exhibit C - Five Party Consent and Waiver
Exhibit D - Authority of Seller
Exhibit E - Authority of Purchaser
Exhibit F - Indemnity Agreement
EXHIBIT A
---------
ASSIGNMENT OF PARTNERSHIP INTEREST
----------------------------------
THIS ASSIGNMENT OF PARTNERSHIP INTEREST (the "Assignment") is made as
of the close of business on the 31st day of March, 1996, by and between JMB
Income Properties, Ltd. - XIII, an Illinois limited partnership ("ASSIGNOR")
and DeBartolo Realty Partnership, L.P., a Delaware limited partnership
("ASSIGNEE").
W I T N E S S E T H:
-------------------
WHEREAS, Assignor is a general partner of West Dade County Associates
(the "PARTNERSHIP") organized and existing under and by virtue of the
documents listed on EXHIBIT "A", attached hereto and made a part hereof
(collectively, the "PARTNERSHIP AGREEMENT"); and
WHEREAS, pursuant to that certain Purchase and Sale Agreement dated
March 15, 1996 by and between Assignor and Assignee, (the "AGREEMENT"),
Assignor has agreed to sell and assign the Partnership Interest (as said term
is hereinafter defined) to Assignee, and Assignee has agreed to take and
accept the Partnership Interest from Assignor.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Assignor and Assignee, intending to be legally bound, hereby
agree as follows:
1. ASSIGNMENT. Assignor hereby conveys, transfers, assigns,
sets over and delivers unto Assignee (a) 29.812% of Assignor's right, title
and interest in and to the Partnership, being a 7.453% interest in the
profits, losses and capital of the Partnership, together with any and all
rights, benefits, privileges, obligations and liabilities appertaining
thereto, including, but not limited to, Assignor's right, title and interest
as a general partner of the Partnership in and to the profits, surplus,
losses, capital, cash flow, rentals, contract rights, cash, accounts,
receivables, escrows, distributions, proceeds, claims, chooses in action and
other assets of the Partnership, (b) all partner loans made by Assignor to the
Partnership, if any, (c) all tax deductions and tax benefits for calendar year
1996 relative to the Partnership, and (d) right to participate in the
management, administration and control of the Partnership and its business and
affairs to the full extent provided for in the Partnership Agreement
(collectively, the "PARTNERSHIP INTEREST"), but in all cases subject to and as
adjusted under the proration provisions contained in the Agreement, reserving
unto itself no rights or interests therein whatsoever.
TO HAVE AND TO HOLD the same unto Assignee and its heirs, legal
representatives, successors and assigns, from and after the date hereof to its
own proper use forever, on and subject to the terms, covenants, conditions and
provisions contained in the Partnership Agreement and herein.
2. ACCEPTANCE. Assignee hereby (a) takes and accepts the
foregoing assignment, (b) adopts and agrees to be bound by all of the terms,
conditions, covenants and provisions of the Partnership Agreement, (c) assumes
and agrees to observe, perform, pay, comply with and discharge all of the
obligations of the Partnership and of Assignor, as a general partner of the
Partnership, and (d) agrees to be a general partner thereof for all purposes,
all in the place and stead of Assignor from and after the date hereof, but not
before.
3. REPRESENTATIONS. Assignor covenants, warrants and represents
that it is the true and lawful owner of all of the rights, title, interests,
options, benefits, powers and privileges hereby assigned, including but not
limited to 7.453% of the profits, losses and capital of the Partnership as
provided in the Partnership Agreement; that it has good title to same; that it
alone has the lawful right and full power and authority to assign and transfer
the same in the manner and form aforesaid; that no other person, firm or
corporation has any right, title, or interest therein; that same are free of
all liens, encumbrances, charges and security interests other than the
security interests granted under Article XXVI of the Partnership Agreement;
and that it will warrant and defend title to same to Assignee against the
claims and demands of all persons.
Assignor further covenants, warrants and represents that
there is no litigation pending or threatened in any court or jurisdiction
relative to the Partnership Interest.
4. DUE DILIGENCE. Assignee acknowledges that (a) it is an
existing partner in the Partnership and is acquiring the Partnership Interest
based solely upon its review of information in its own possession and
Assignor's express representations and warranties set forth herein, and (b)
except as is expressly set forth in this Assignment, the sale of the
Partnership Interest is and shall be made without representation or warranty,
whether express or implied, by Assignor.
5. NO CHANGE. Nothing contained herein is intended to modify,
alter or affect the allocation of rights, duties, obligations and liability of
Assignor and Assignee under the Partnership Agreement with respect to all
periods prior to the date hereof that is provided for under the Partnership
Agreement.
6. FURTHER ASSURANCES. Assignor and Assignee agree that they
will cooperate with each other and will make, execute, acknowledge, deliver,
record and file, or cause to be made, executed, acknowledged, delivered,
recorded and filed, at such times and places as the other may reasonably deem
necessary, all other and further documents and instruments, and will take all
other and further actions, as the other may reasonably request from time to
time in order to create, perfect, preserve
and/or confirm the interest in and title to the property and rights hereby
assigned and transferred to Assignee and Assignee's agreements in Paragraph 2
hereof, and otherwise to effectuate the purposes and provisions of this
Assignment.
7. AUTHORIZATION. Each signatory hereto certifies that he or
she is duly authorized and empowered to sign and deliver this Assignment on
behalf of all entities named below on whose behalf he or she has so acted.
8. GOVERNING LAWS/SUCCESSORS AND ASSIGNS. This Assignment shall
be governed by, and shall be construed and enforced in accordance with, the
laws of the state of formation of the Partnership, and shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective
heirs, legal representatives, successors and assigns.
9. AMENDMENT. No purported modification of this Assignment
shall be valid unless the same is in writing and signed by Assignor and
Assignee.
10. LIMITATION ON LIABILITY. No present or future advisor,
trustee, director, officer, partner, employee, beneficiary, shareholder,
participant or agent of or in Assignor or Assignee or any entity now or
hereafter having a direct or indirect ownership interest in Assignor or
Assignee shall have any personal liability, directly or indirectly, under or
in connection with this Assignment or any agreement made or entered into in
connection with this Assignment, or any amendment or amendments to any of the
foregoing made at any time or times, heretofore or hereafter, and all parties
hereto and their respective successors and assigns and, without limitation,
all other persons and entities, shall look solely to the property and assets
of Assignor and Assignee (as the case may be) for the payment of any claim
hereunder. For the purposes of this paragraph, in no event shall a deficit
capital account of any direct or indirect partner in Assignor or Assignee nor
any obligation of any direct or indirect partner in Assignor or Assignee to
restore a deficit capital account or to contribute capital to Assignor or
Assignee (or to any other partnership that is a direct or indirect partner
therein) at any time be deemed to be an asset or property of Assignor or
Assignee, and the parties hereto, their respective successors and assigns and
all other persons and entities shall have no right to collect, enforce or
proceed against or with respect to any such deficit capital account or
obligation to restore or contribute. The limitations of liability provided in
this paragraph are in addition to, and not in limitation of, any limitation on
liability applicable to Assignor or Assignee provided by law or by any other
contract, agreement or instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
to be effective as of the date first above-written.
ASSIGNOR:
JMB INCOME PROPERTIES LTD.-XIII
an Illinois limited partnership
By: JMB Realty Corporation
a Delaware corporation,
its managing general partner
By:
Name:
Title:
ASSIGNEE:
DeBARTOLO REALTY PARTNERSHIP, L.P.
By: DeBartolo Realty Corporation,
General Partner
By:
Title:
Attached: Exhibit A (List of Partnership Documents)
EXHIBIT A
---------
PARTNERSHIP AGREEMENT
Consisting of all agreements, modifications, supplements,
and amendments of the parties listed below relating to
West Dade County Associates, a Florida general partnership
-----------------------------------------------------------
1. Restatement and Fourth Amendment to Joint Venture Agreement of West
Dade County Associates by and between DeBartolo-Miami Associates, Flomall
Development, Inc., and JMB/Miami International Associates, Inc., dated
February 28, 1989.
2. First Amendment to Restatement and Fourth Amendment to Joint Venture
Agreement of West Dade Associates, a Florida general partnership, by and
between DeBartolo-Miami Associates, an Ohio general partnership, and JMB/Miami
International Associates, dated June 30, 1992.
3. Second Amendment to Restatement and Fourth Amendment to Joint Venture
Agreement of West Dade County Associates, a Florida general partnership, by
and among Marie Denise DeBartolo York, Lisa Marie DeBartolo Revocable Trust,
Tiffanie Lynne DeBartolo Revocable Trust, Edward J. DeBartolo Trust No. 7,
Edward J. DeBartolo Trust No. 8, M-I Mall, Inc., DeBartolo-Miami Associates
and JMB/Miami International Associates.
4. Partner Consent dated October 13, 1993 by JMB/Miami International
Associates, countersigned by DeBartolo-Miami Associates, Marie Denise
DeBartolo York, and the trustees of the Lisa Marie DeBartolo Revocable Trust,
the Tiffanie Lynne DeBartolo Revocable Trust, and Edward J. DeBartolo Trust
Nos. 7 and 8.
5. Letter dated July 12, 1995 from Urban Shopping Centers, Inc. to
DeBartolo Realty Partnership, L.P.
6. Letter dated December 31, 1995 from JMB/Miami International
Associates to DeBartolo Properties Management, Inc.
EXHIBIT B
---------
West Dade County Associates
Purchase and Sale Agreement
Proration of Non Real Estate Assets & Liabilities
March 31, 1996
Total non real estate assets $1,260,816
Total non real estate liabilities (930,816)
----------
330,000
Pro rata distribution to partners 3/29 (330,000)
----------
Proration $ 0
==========
The prorations hereunder have been made on a preliminary basis on information
and estimates prepared by DeBartolo Realty Partnership, L.P. Seller shall
have the right to verify that the foregoing correctly and accurately sets
forth all non-real estate assets and all non-real estate liabilities of West
Dade County Associates as of March 31, 1996, within 60 days after the closing
hereunder. If the foregoing amounts are incorrect or inaccurate in any
respect, same shall be corrected, the prorations hereunder shall be adjusted,
and any amounts due from one party to the other shall be paid promptly. The
parties will cooperate with each other in good faith to finalize such
prorations as soon as reasonably possible (and will provide each other with
reasonable access to appropriate books and records and financial information
in connection therewith). The parties agree that, in no event shall any
proration calculations be based on West Dade County Associates retaining or
holding any reserves after March 31, 1996.
EXHIBIT C
---------
FIVE PARTY CONSENT AND WAIVER AGREEMENT
----------------------------------------
March 29, 1996
RE: West Dade County Associates, a Florida general partnership (the
"JOINT VENTURE") composed of JMB/Miami International Associates and DeBartolo
Realty Partnership, L.P. ("DeBARTOLO")
MIAMI INTERNATIONAL MALL, DADE COUNTY, FLORIDA
--------------------------------------------------------------------
The undersigned parties consent to (a) JMB/Miami International Associates'
("JMB/MIAMI") distribution by assignment of (a) a 25% interest in the Joint
Venture to JMB Income Properties, Ltd.-XIII, (b) a 2.547% interest in the
Joint Venture to IDS/JMB Balanced Income Growth, Ltd., and (c) a 22.453%
interest in the Joint Venture to Urban Shopping Centers, L.P., in complete
liquidation of said parties' respective interests in JMB/Miami, and (b) the
subsequent assignment (i) of a 17.547% interest in the Joint Venture by JMB
Income Properties, Ltd.-XIII to Urban Shopping Centers, L.P., ("URBAN"), (ii)
of a 7.453% interest in the Joint Venture by JMB Income Properties, Ltd.-XIII
to DeBartolo Realty Partnership, L.P., and (iii) a 2.547% interest in the
Joint Venture by IDS/JMB Balanced Income Growth, Ltd. to DeBartolo Realty
Partnership, L.P.
It is further agreed that (x) the Joint Venture shall continue in full force
and effect notwithstanding any assignment described herein, whether occurring
now or in the future, (y) following the aforesaid assignments, the only
partners of the Joint Venture shall be DeBartolo, who shall thereupon hold a
60% profits in the Joint Venture, and Urban, who shall thereupon hold a 40%
profits interest in the Joint Venture, with all rights and obligations
appertaining thereto, and each shall recognize the other as such, and (z) each
of the undersigned parties hereby waives (1) any and all restrictions and
limitations of any nature whatsoever relating to the aforedescribed
assignments; (2) any obligation of any person or entity to deliver to any of
the undersigned any notices, written or oral, or any documents or other
writings relating thereto; (3) any rights of any of the undersigned parties
which would otherwise arise as a direct or indirect result of the aforesaid
transactions; (4) any right to dissolve, terminate or liquidate the Joint
Venture as a result of the aforesaid transactions; and (5) any option to
purchase, right of first refusal, right of first offer, or any similar rights
that it may have as the result of or in connection with the aforesaid
transactions.
Each of the undersigned parties agrees that by executing this agreement, the
aforesaid transactions can be consummated without any further approvals,
waivers or releases being given by any of the undersigned.
Each of the undersigned parties further agree that the documents listed in
EXHIBIT A, attached hereto and made a part hereof, constitute all of the
agreements, whether oral or written, concerning the Joint Venture, that same
are in full force and effect, and have not been amended, modified,
supplemented, restated, and/or extended except as set forth in Exhibit A
hereto.
Each of the undersigned parties hereby state that to the best of their
knowledge and belief, there is no default by any other partner under the
documents referred to in Exhibit A hereto, and no event has occurred, which,
with the giving of notice, the passage of time, or both, would constitute a
default under said documents.
In the event of any conflict between the provisions of this agreement and the
provisions of the documents referred to in Exhibit A hereto, the provisions of
this agreement shall govern.
This agreement shall be governed by, and shall be construed and enforced in
accordance with, the laws of the State of Florida. No purported modification
of this agreement shall be valid unless the same is in writing and signed by
all parties hereto. Each signatory hereto certifies that he or she is duly
authorized and empowered to sign this agreement on behalf of all entities
named below on whose behalf he or she has so acted.
This agreement may be executed in multiple counterparts, each of which, when
so executed and delivered, shall be deemed an original, and all of which shall
together constitute one and the same agreement, and shall be binding on the
signatories; and the signature of any of the parties hereto to any counterpart
shall be deemed a signature to, and may be appended to, any other counterpart.
The provisions of this agreement shall be binding upon the undersigned parties
and their respective successors and assigns, and shall inure to the benefit of
all of the undersigned parties and their respective lenders, successors and
assigns.
DeBARTOLO REALTY PARTNERSHIP, L.P., JMB INCOME PROPERTIES LTD.-XIII,
a Delaware limited partnership an Illinois limited partnership
By: DeBartolo Realty Corporation, By: JMB Realty Corporation,
an Ohio corporation, a Delaware corporation,
its Managing General Partner its Managing General Partner
By: KIM A. RIECK By:
Kim A. Rieck, Name:
Sr. Vice President Title:
JMB/MIAMI INTERNATIONAL ASSOCIATES, IDS/JMB BALANCED INCOME
an Illinois general partnership GROWTH, LTD.,
an Illinois limited partnership
By: JMB Income Properties Ltd.-XIII, By: Income Growth Managers, Inc.,
an Illinois limited partnership, an Illinois corporation,
a general partner sole general partner
By: JMB Realty Corporation By:
a Delaware corporation, Name:
its managing general partner Title:
By:
Name:
Title:
URBAN SHOPPING CENTERS, L.P.
By: Urban Shopping Centers, Inc.,
its sole general partner
By:
Title:
EXHIBIT A
---------
PARTNERSHIP AGREEMENT
Consisting of all agreements, modifications, supplements,
and amendments of the parties listed below relating to
West Dade County Associates, a Florida general partnership
-----------------------------------------------------------
1. Restatement and Fourth Amendment to Joint Venture Agreement of West
Dade County Associates by and between DeBartolo-Miami Associates, Flomall
Development, Inc., and JMB/Miami International Associates, Inc., dated
February 28, 1989.
2. First Amendment to Restatement and Fourth Amendment to Joint Venture
Agreement of West Dade Associates, a Florida general partnership, by and
between DeBartolo-Miami Associates, an Ohio general partnership, and JMB/Miami
International Associates, dated June 30, 1992.
3. Second Amendment to Restatement and Fourth Amendment to Joint Venture
Agreement of West Dade County Associates, a Florida general partnership, by
and among Marie Denise DeBartolo York, Lisa Marie DeBartolo Revocable Trust,
Tiffanie Lynne DeBartolo Revocable Trust, Edward J. DeBartolo Trust No. 7,
Edward J. DeBartolo Trust No. 8, M-I Mall, Inc., DeBartolo-Miami Associates
and JMB/Miami International Associates.
4. Partner Consent dated October 13, 1993 by JMB/Miami International
Associates, countersigned by DeBartolo-Miami Associates, Marie Denise
DeBartolo York, and the trustees of the Lisa Marie DeBartolo Revocable Trust,
the Tiffanie Lynne DeBartolo Revocable Trust, and Edward J. DeBartolo Trust
Nos. 7 and 8.
5. Letter dated July 12, 1995 from Urban Shopping Centers, Inc. to
DeBartolo Realty Partnership, L.P.
6. Letter dated December 31, 1995 from JMB/Miami International Associates
to DeBartolo Properties Management, Inc.
EXHIBIT D
---------
JMB/INCOME PROPERTIES, LTD. - XIII
- - ----------------------------------
1. Certified Agreement of Limited Partnership
2. Certificate of Limited Partnership - Illinois
3. Certificate of Existence - Illinois
4. Certified Application to Transact Business in Florida
5. Certificate of Status - Florida
JMB REALTY CORPORATION
- - ----------------------
6. Certified Articles of Incorporation and By-Laws
7. Certificate of Incorporation
8. Good Standing Certificate - Delaware
9. Certified Application to Transact Business in Florida
10. Certificate of Status - Florida
11. Certified Corporate Resolutions
12. Certificate of Incumbency
EXHIBIT E
---------
DeBARTOLO REALTY PARTNERSHIP, L.P.
- - ----------------------------------
1. Certified Agreement of Limited Partnership
2. Certificate of Limited Partnership - Delaware
3. Certificate of Existence - Delaware
4. Certified Application to Transact Business in Florida
5. Certificate of Status - Florida
DeBARTOLO REALTY CORPORATION
- - ----------------------------
6. Certified Articles of Incorporation and By-Laws
7. Good Standing Certificate - Ohio
8. Certified Application to Transact Business in Florida
9. Certificate of Status - Florida
10. Certified Corporate Resolutions
11. Certificate of Incumbency
EXHIBIT F
---------
INDEMNITY AGREEMENT
-------------------
THIS INDEMNITY AGREEMENT ("AGREEMENT") is made as of April 1, 1996 by
WEST DADE COUNTY ASSOCIATES, a Florida general partnership (the "INDEMNITOR")
composed of DeBARTOLO REALTY PARTNERSHIP, a Delaware limited partnership
("DeBARTOLO"),. and URBAN SHOPPING CENTERS, L.P., an Illinois limited
partnership ("URBAN"), for the benefit of JMB INCOME PROPERTIES, LTD.-XIII, an
Illinois limited partnership, and IDS/JMB BALANCED INCOME GROWTH, LTD., an
Illinois limited partnership (hereinafter referred to individually and
collectively as "BENEFICIARY").
WITNESSETH:
----------
WHEREAS, Beneficiary has immediately prior hereto sold and transferred
all of its right, title and interest in and to West Dade County Associates to
DeBartolo and Urban; and
WHEREAS, as a condition to said sale and transfer, Beneficiary has
required that Indemnitor indemnify and hold Beneficiary from and against those
certain liabilities and obligations hereinafter described;
NOW, THEREFORE, as an inducement to Beneficiary to complete said sale
and transfer, and in consideration of $10.00, the mutual covenants and
agreements herein contained, and other good and valuable consideration paid by
each party to the other, the receipt and sufficiency of which are hereby
acknowledged, Indemnitor agrees as follows:
1. INDEMNITY. Indemnitor hereby agrees to pay, protect, defend,
indemnify and hold Beneficiary (which term, as used in this Agreement, shall
also include each Beneficiary's successors and assigns, and their respective
directors, officers, employees, partners, members and attorneys) harmless from
and against any and all liabilities, obligations, losses, damages, costs and
expenses (including, without limitation, reasonable attorneys' fees, costs and
disbursements), causes of action, suits, claims, lawsuits, demands and
judgments of any nature or description whatsoever, which may at any time be
imposed upon, incurred by or awarded against Beneficiary, resulting from or in
connection with:
(a) Any matter which is excluded from the limitations on
personal liability contained in paragraph 18 of that certain Consolidated,
Modified, Renewed and Restate Promissory Note dated December 21, 1993 by West
Dade County Associates unto The Prudential Insurance Company of America, and
all corresponding provisions which impose personal liability that are
contained in all other documents evidencing and/or securing the indebtedness
evidenced by said Consolidated, Modified, Renewed and Restated Promissory
Note, EXCEPT, in all events, such liabilities, obligations, losses, damages,
costs and expenses (including, without limitation, reasonable attorneys' fees,
costs and disbursements), causes of action, suits, claims, lawsuits, demands
and judgments of any nature or description whatsoever arising out of,
resulting from or in connection with the acts of Beneficiary, as to which
Indemnitor shall have no liability hereunder, and which Beneficiary shall
protect, indemnify, defend, pay and hold Indemnitor harmless from and against;
and
(b) West Dade County Associates and/or its property, but
only to the extent that same arise, accrue, mature and/or relate to any period
on or after the date hereof.
2. NO WAIVER. No provision of this Agreement shall be deemed to
have been waived unless such waiver shall be in writing, signed by the party
against whom such waiver is sought to be enforced.
3. REMEDIES CUMULATIVE. Each right, privilege and remedy afforded
to Beneficiary by the provisions of this Agreement shall be separate, distinct
and cumulative and shall be in addition to every other right or remedy
provided for in this Agreement or now or hereafter existing at law or in
equity. Beneficiary's exercise or commencement of exercise of any one or more
of the rights and/or remedies provided for in this Agreement or now or
hereafter existing at law or in equity shall not be deemed or construed to be
a waiver of or to prejudice or preclude the concurrent or later exercise by
Beneficiary of any or all other rights and/or remedies provided for in this
Agreement or now or hereafter existing at law or in equity.
4. SUCCESSIVE ACTIONS. A separate right of action hereunder shall
arise each time Beneficiary acquires knowledge of any matter indemnified by
Indemnitor under this Agreement. Separate and successive actions may be
brought hereunder to enforce any of the provisions hereof at any time and from
time to time. No action hereunder shall preclude any subsequent action.
5. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which, when so executed and delivered, shall be deemed
an original, and all of which shall together constitute one and the same
agreement, and shall be binding on the signatories; and the signature of any
of the parties hereto to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
6. MISCELLANEOUS. This Agreement (a) expresses the parties entire
understanding and agreement with respect to the subject matter hereof, all
prior agreements between the parties with respect to the subject matter hereof
being merged herein and extinguished; (b) shall be binding upon Indemnitor,
and shall inure to the benefit of Beneficiary, and their respective heirs,
legal
representatives, successors and assigns; (c) may only be made by written
agreement executed by all parties hereto; and (d) shall be governed by, and
shall be construed and enforced in accordance with, the laws of the State of
Florida. Each signatory hereto certifies that he or she is duly authorized
and empowered to sign and deliver this Agreement on behalf of all entities
named below on whose behalf he or she has so acted.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement
to be executed, acknowledged and delivered in multiple counterparts as of the
date first above written.
WEST DADE COUNTY ASSOCIATES
BY: DeBARTOLO REALTY PARTNERSHIP, L.P.,
a Delaware limited partnership, General Partner
By: DeBartolo Realty Corporation,
an Ohio corporation,
its Managing General Partner
By: KIM A. RIECK
Kim A. Rieck, Sr. Vice President
BY: URBAN SHOPPING CENTERS, L.P.,
General Partner
By: Urban Shopping Centers, Inc.
its sole general partner
By:
Title: Sr. Vice President
EXHIBIT 10.4 Assignment of Partnership Interest Agreement between JMB Income
Properties, Ltd. - XIII and DeBartolo Realty Partnership, L.P. dated as of
March 31, 1996.
ASSIGNMENT OF PARTNERSHIP INTEREST
-----------------------------------
THIS ASSIGNMENT OF PARTNERSHIP INTEREST (the "ASSIGNMENT") is made as of
the close of business on the 31st day of March, 1996, by and between JMB
Income Properties, Ltd.-XIII, an Illinois limited partnership ("ASSIGNOR") and
DeBartolo Realty Partnership, L.P., a Delaware limited partnership
("ASSIGNEE").
WITNESSETH:
----------
WHEREAS, Assignor is a general partner of West Dade County Associates
(the "PARTNERSHIP") organized and existing under and by virtue of the
documents listed on EXHIBIT "A", attached hereto and made a part hereof
(collectively, the "PARTNERSHIP AGREEMENT"); and
WHEREAS, pursuant to that certain Purchase and Sale Agreement dated March
15, 1996 by and between Assignor and Assignee, (the "AGREEMENT"), Assignor has
agreed to sell and assign the Partnership Interest (as said term is
hereinafter defined) to Assignee, and Assignee has agreed to take and accept
the Partnership Interest from Assignor.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Assignor and Assignee, intending to be legally bound, hereby
agree as follows:
1. ASSIGNMENT. Assignor hereby conveys, transfers, assigns, sets
over and delivers unto Assignee (a) 29.812% of Assignor's right, title and
interest in and to the Partnership, being a 7.453% interest in the profits,
losses and capital of the Partnership, together with any and all rights,
benefits, privileges, obligations and liabilities appertaining thereto,
including, but not limited to, Assignor's right, title and interest as a
general partner of the Partnership in and to the profits, surplus, losses,
capital, cash flow, rentals, contract rights, cash, accounts, receivables,
escrows, distributions, proceeds, claims, chooses in action and other assets
of the Partnership, (b) all partner loans made by Assignor to the Partnership,
if any, (c) all tax deductions and tax benefits for calendar year 1996
relative to the Partnership, and (d) right to participate in the management,
administration and control of the Partnership and its business and affairs to
the full extent provided for in the Partnership Agreement (collectively, the
"PARTNERSHIP INTEREST"), but in all cases subject to and as adjusted under the
proration provisions contained in the Agreement, reserving unto itself no
rights or interests therein whatsoever.
TO HAVE AND TO HOLD the same unto Assignee and its heirs, legal
representatives, successors and assigns, from and after the date hereof to its
own proper use forever, on and subject to the terms, covenants, conditions and
provisions contained in the Partnership Agreement and herein.
2. ACCEPTANCE. Assignee hereby (a) takes and accepts the
foregoing assignment, (b) adopts and agrees to be bound by all of the terms,
conditions, covenants and provisions of the Partnership Agreement, (c) assumes
and agrees to observe, perform, pay, comply with and discharge all of the
obligations of the Partnership and of Assignor, as a general partner of the
Partnership, and (d) agrees to be a general partner thereof for all purposes,
all in the place and stead of Assignor from and after the date hereof, but not
before.
3. REPRESENTATIONS. Assignor covenants, warrants and represents
that it is the true and lawful owner of all of the rights, title, interests,
options, benefits, powers and privileges hereby assigned, including but not
limited to 7.453% of the profits, losses and capital of the Partnership as
provided in the Partnership Agreement; that it has good title to same; that it
alone has the lawful right and full power and authority to assign and transfer
the same in the manner and form aforesaid; that no other person, firm or
corporation has any right, title, or interest therein; that same are free of
all liens, encumbrances, charges and security interests other than the
security interests granted under Article XXVI of the Partnership Agreement;
and that it will warrant and defend title to same to Assignee against the
claims and demands of all persons.
Assignor further covenants, warrants and represents that there
is no litigation pending or threatened in any court or jurisdiction relative
to the Partnership Interest.
4. DUE DILIGENCE. Assignee acknowledges that (a) it is an
existing partner in the Partnership and is acquiring the Partnership Interest
based solely upon its review of information in its own possession and
Assignor's express representations and warranties set forth herein, and (b)
except as is expressly set forth in this Assignment, the sale of the
Partnership Interest is and shall be made without representation or warranty,
whether express or implied, by Assignor.
5. NO CHANGE. Nothing contained herein is intended to modify,
alter or affect the allocation of rights, duties, obligations and liability of
Assignor and Assignee under the Partnership Agreement with respect to all
periods prior to the date hereof that is provided for under the Partnership
Agreement.
6. FURTHER ASSURANCES. Assignor and Assignee agree that they will
cooperate with each other and will make, execute, acknowledge, deliver, record
and file, or cause to be made, executed, acknowledged, delivered, recorded and
filed, at such times and places as the other may reasonably deem necessary,
all other and further documents and instruments, and will take all other and
further actions, as the other may reasonably request from time to time in
order to create, perfect, preserve
and/or confirm the interest in and title to the property and rights hereby
assigned and transferred to Assignee and Assignee's agreements in Paragraph 2
hereof, and otherwise to effectuate the purposes and provisions of this
Assignment.
7. AUTHORIZATION. Each signatory hereto certifies that he or she
is duly authorized and empowered to sign and deliver this Assignment on behalf
of all entities named below on whose behalf he or she has so acted.
8. GOVERNING LAWS/SUCCESSORS AND ASSIGNS. This Assignment shall
be governed by, and shall be construed and enforced in accordance with, the
laws of the state of formation of the Partnership, and shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective
heirs, legal representatives, successors and assigns.
9. AMENDMENT. No purported modification of this Assignment shall
be valid unless the same is in writing and signed by Assignor and Assignee.
10. LIMITATION ON LIABILITY. No present or future advisor, trustee,
director, officer, partner, employee, beneficiary, shareholder, participant or
agent of or in Assignor or Assignee or any entity now or hereafter having a
direct or indirect ownership interest in Assignor or Assignee shall have any
personal liability, directly or indirectly, under or in connection with this
Assignment or any agreement made or entered into in connection with this
Assignment, or any amendment or amendments to any of the foregoing made at any
time or times, heretofore or hereafter, and all parties hereto and their
respective successors and assigns and, without limitation, all other persons
and entities, shall look solely to the property and assets of Assignor and
Assignee (as the case may be) for the payment of any claim hereunder. For the
purposes of this paragraph, in no event shall a deficit capital account of any
direct or indirect partner in Assignor or Assignee nor any obligation of any
direct or indirect partner in Assignor or Assignee to restore a deficit
capital account or to contribute capital to Assignor or Assignee (or to any
other partnership that is a direct or indirect partner therein) at any time be
deemed to be an asset or property of Assignor or Assignee, and the parties
hereto, their respective successors and assigns and all other persons and
entities shall have no right to collect, enforce or proceed against or with
respect to any such deficit capital account or obligation to restore or
contribute. The limitations of liability provided in this paragraph are in
addition to, and not in limitation of, any limitation on liability applicable
to Assignor or Assignee provided by law or by any other contract, agreement or
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment to
be effective as of the date first above-written.
ASSIGNOR:
JMB INCOME PROPERTIES LTD.-XIII
an Illinois limited partnership
By: JMB Realty Corporation
a Delaware corporation,
its managing general partner
By: DENNIS M. QUINN
Name: Dennis M. Quinn
Title: Sr. Vice President
ASSIGNEE:
DeBARTOLO REALTY PARTNERSHIP, L.P.
By: DeBartolo Realty Corporation,
General Partner
By:
Title: Sr. Vice President
Attached: Exhibit A (List of Partnership Documents)
EXHIBIT A
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PARTNERSHIP AGREEMENT
Consisting of all agreements, modifications, supplements,
and amendments of the parties listed below relating to
West Dade County Associates, a Florida general partnership
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1. Restatement and Fourth Amendment to Joint Venture Agreement of West
Dade County Associates by and between DeBartolo-Miami Associates, Flomall
Development, Inc., and JMB/Miami International Associates, Inc., dated
February 28, 1989.
2. First Amendment to Restatement and Fourth Amendment to Joint Venture
Agreement of West Dade Associates, a Florida general partnership, by and
between DeBartolo-Miami Associates, an Ohio general partnership, and JMB/Miami
International Associates, dated June 30, 1992.
3. Second Amendment to Restatement and Fourth Amendment to Joint Venture
Agreement of West Dade County Associates, a Florida general partnership, by
and among Marie Denise DeBartolo York, Lisa Marie DeBartolo Revocable Trust,
Tiffanie Lynne DeBartolo Revocable Trust, Edward J. DeBartolo Trust No. 7,
Edward J. DeBartolo Trust No. 8, M-I Mall, Inc., DeBartolo-Miami Associates
and JMB/Miami International Associates.
4. Partner Consent dated October 13, 1993 by JMB/Miami International
Associates, countersigned by DeBartolo-Miami Associates, Marie Denise
DeBartolo York, and the trustees of the Lisa Marie DeBartolo Revocable Trust,
the Tiffanie Lynne DeBartolo Revocable Trust, and Edward J. DeBartolo Trust
Nos. 7 and 8.
5. Letter dated July 12, 1995 from Urban Shopping Centers, Inc. to
DeBartolo Realty Partnership, L.P.
6. Letter dated December 31, 1995 from JMB/Miami International
Associates to DeBartolo Properties Management, Inc.
EXHIBIT 10.5 Dissolution Agreement between JMB Income Properties, Ltd. -
XIII, IDS/JMB Balanced Income Growth, Ltd. and Urban Shopping Centers, L.P.
dated as of March 31, 1996.
DISSOLUTION AGREEMENT
THIS AGREEMENT is made as of the 31st day of march, 1996, by and
among JMB INCOME PROPERTIES, LTD.-XIII, an Illinois limited partnership ("JMB-
XIII"), IDS/JMB BALANCED INCOME GROWTH, LTD., an Illinois limited partnership
("IDS/JMB"), and URBAN SHOPPING CENTERS, L.P., an Illinois limited partnership
("Urban").
RECITALS:
A. JMB/Miami International Associates ("JMB/Miami") was formed
as an Illinois general partnership pursuant to the Uniform Partnership act of
the State of Illinois in accordance with Articles of Partnership dated as of
January 1, 1988 (the "Articles") executed by JMB-XIII and JMB Income
Properties, L.P.-XIV, a Delaware limited partnership ("JMB-XIV").
B. The Articles were amended and restated to provide for the
admission of IDS/JMB as a partner pursuant to those certain Amended and
Restated Articles of Partnership of JMB/Miami dated as of February 28, 1989
(the "Amended Articles").
C. Pursuant to a consent to assignment of interest in JMB/Miami
(the "Consent to Assignment"), the Amended Articles were further amended to
admit Urban to the Partnership as a substituted partner to replace JMB-XIV, so
that after the Consent to assignment was executed, IDS/JMB, JMB-XIII and Urban
constituted (and presently constitute) all of the partners in JMB/Miami. As
used herein, the term "Partnership Agreement" means the Amended Articles, as
amended by the Consent to Assignment.
D. JMB/Miami currently owns a fifty percent (50%) interest in
West Dade County Associates, a Florida general partnership (the "Joint
Venture"). DeBartolo Realty Partnership, L.P., a Delaware limited partnership
("DeBartolo"), currently owns the remaining fifty percent (50%) interest in
the Joint Venture. The Joint Venture owns an approximately 967,000 square
foot enclosed regional mall located in Miami, Florida and known as Miami
International Mall (the "Property").
E. Pursuant to separate letters of intent ("Letters of Intent")
each dated February 13, 1996, DeBartolo has expressed an interest in acquiring
certain of the interests of JMB-XIII and IDS/JMB with respect to the Property.
However, DeBartolo is unwilling to become a partner in JMB/Miami because of
the complications, liabilities and inconvenience resulting from acquiring an
indirect
ownership interest in the Joint Venture through JMB/Miami. As a result,
DeBartolo is only willing to acquire such interests if JMB/Miami were to
dissolve, and the interests in the Joint Venture distributed to each of JMB-
XIII, Urban and IDS/JMB, and, thereupon, DeBartolo would acquire such
interests in the Joint Venture directly from JMB-XIII and IDS/JMB.
F. The parties acknowledge that Urban is unwilling to sell its
interests with respect to the Property, directly or indirectly. In addition,
the parties acknowledge that a sale of the interests of JMB-XIII and IDS/JMB
would result in a sale of a substantial portion of the interests in and,
indirectly the property of, JMB/Miami and would trigger certain approval
and/or rights of first refusal in favor of Urban. In connection therewith,
the parties wish to set forth their agreements respecting the matters
contemplated herein.
IN VIEW OF THE FOREGOING FACTS, and in consideration of the
respective undertakings of the parties hereto, it is hereby agreed as follows:
1. DISSOLUTION OF JMB/MIAMI. The parties hereby
unanimously agree that it is in the best interests of the parties to
voluntarily dissolve JMB/Miami in accordance with Section 11B(iii) of the
Partnership Agreement and Section 805 ILCS 205/31 of the Uniform Partnership
Act of the State of Illinois (the "Act"), and in that connection:
a. On the "Closing Date" (as hereinafter
defined) JMB/Miami shall voluntarily be dissolved in accordance with Section
11B(iii) of the Partnership Agreement and Section 805 ILCS 205/31 of the Act,
and such documents and filings as may be necessary or desirable to properly
effectuate the dissolution of JMB/Miami shall be executed and delivered. The
parties will appropriately adjust all items of income, expense, profit and
loss with respect to JMB/Miami in connection with such dissolution.
b. Concurrently therewith, and as a part of
such dissolution, JMB/Miami shall withdraw as a partner in the Joint Venture
and the interests of JMB/Miami in the Joint Venture shall be distributed to
IDS/JMB, Urban and JMB-XIII, who shall thereupon be admitted as substituted
partners in the Joint Venture in the place, name and stead of JMB/Miami, such
that JMB-XIII would thereupon own an undivided twenty-five percent (25%)
general partnership interest, IDS/JMB would own an undivided two and five
hundred forty-seven one thousandths percent (2.547%) general partnership
interest, and Urban would own an undivided twenty-two and four hundred five-
three one thousandths percent (22.453%) general partnership interest in the
Joint Venture.
c. Notwithstanding the dissolution of
JMB/Miami, each of the parties hereto shall remain liable after such
dissolution for the obligations and liabilities of JMB/Miami in the same
manner and to the same extent as before such dissolution, and shall continue
to have, with respect to each other, the same rights to contribution and/or
indemnification (whether under the terms of the Partnership Agreement, by law
or otherwise) as a general partner of JMB/Miami in regard to such obligations
and liabilities as existed before such dissolution.
2. RIGHTS OF FIRST REFUSAL. The parties hereto desire
to clarify and specifically set forth certain rights with respect to the sale
of a party's interest in the Joint Venture and, in that connection, hereby
agree as follows:
a. Each party acknowledges and agrees that as
long as two or more of the parties hereto own interests in the Joint Venture,
such parties will each have a right of first refusal to purchase the interest
in the Joint Venture of any such other party hereto desiring to sell its
interest in the Joint Venture. In such event the party desiring such sale
(the "Notifying Party") must give notice (the "Intended Sale Notice") to such
other parties (individually, a "Notified Party" and collectively the "Notified
Parties") of the proposed transaction and shall deliver to the Notified
Parties with such Intended Sale Notice, a copy of the bona fide written offer
("Offer") from the prospective purchaser setting forth the name of the
prospective purchaser and all of the material terms and conditions on which it
is intended that the Notifying Party's interest in the Joint Venture be sold.
Each Notified Party shall then have 30 days after receiving the Intended Sale
Notice to elect (by giving notice thereof to all such other parties within
such 30-day period) to purchase such Joint Venture interest for the purchase
price and on the terms and conditions set forth in such Offer. If both
Notified Parties elect to so purchase, they shall each acquire a portion of
such Joint Venture interest intended to be sold, such portion to be based on
the ratio which each such Notified Party's own Joint Venture interest bears to
the aggregate Joint Venture interests of both Notified Parties. If either or
both such Notified Parties elect to purchase, the sale of the Notifying
Party's interest in the Joint Venture shall close on a date, not later than 60
days nor earlier than 10 days after the making of such election, specified in
such election (or such other date as the Notified and Notifying Parties may
mutually agree). If no Notified Party makes an election to acquire the
Notifying Party's interest in the Joint Venture, then the Notifying Party may
conclude the sale of its Joint Venture interest pursuant to the Offer at any
time or times within 180 days after the giving of the Intended Sale Notice,
for a purchase price and on substantially the same terms as contained in the
Offer. If a sale by the Notifying Party is not consummated within such
period, then the right of the Notified Parties to receive notice and to
purchase as aforesaid will continue as to any future proposed sale.
b. With respect to each Offer contained in the
Letters of Intent, each of the parties hereto acknowledges and agrees that the
requirements for providing the Intended Sale Notice and a copy of each Offer
pursuant to Paragraph 2.a hereof have been satisfied, and JMB-XIII and IDS/JMB
each hereby waives any right to acquire any interest of the other party
thereunder, and Urban elects as follows:
(i) On the Closing Date, Urban shall
acquire, and JMB-XIII shall sell, seventy and one hundred eighty-eight
thousandths percent (70.188%) of the undivided twenty-five percent (25%)
interest of JMB-XIII in the Joint Venture for the purchase price of
$9,427,364.21.
(ii) It is contemplated that
concurrently therewith, DeBartolo shall acquire, and JMB-XIII shall sell, the
remaining twenty-nine and eight hundred twelve one thousandths percent
(29.812%) of the undivided twenty-five percent (25%) interest of JMB-XIII in
the Joint Venture for a purchase price of $4,004,225.43.
(iii) It is further contemplated that
concurrently therewith, DeBartolo shall acquire, and IDS/JMB shall sell, the
entire undivided two and five hundred forty-seven one-thousandths percent
(2.547%) interest of IDS/JMB in the Joint Venture for a purchase price of
$1,368,410.36.
Notwithstanding the foregoing, Urban further elects that if DeBartolo fails to
acquire the interests of JMB/XIII and/or IDS/JMB as set forth above, then
Urban shall acquire the same on the foregoing terms.
c. Each of the parties hereto acknowledges and
agrees that the election of Urban under Paragraph 2.b. hereof to acquire a
portion of the interest of JMB-XIII in the Joint Venture and the election of
Urban to permit DeBartolo to acquire the entire interest of IDS/JMB in the
Joint Venture have been made in accordance with the requirements of Paragraph
2.a. hereof.
3. CLOSING. The closing of the transactions
contemplated herein shall occur on the date hereof or such other date as
agreed upon by all of the parties hereto (such date being herein called the
"Closing Date"). The closing of the transactions contemplated herein shall
occur in accordance with, and subject to, the terms and provisions set forth
in the respective sale agreements entered into among such parties respecting
such transactions.
4. APPROVAL AND CONSENT. The parties hereto hereby
approve and consent to the transactions described hereinabove and waive any
rights of first refusal they might otherwise have had with respect to
acquiring any interest of any
other party in JMB/Miami or in the Joint Venture except as expressly set forth
herein.
5. MISCELLANEOUS.
a. LIMITATION OF LIABILITY. No present or
future advisor, trustee, director, officer, partner, employee, beneficiary,
shareholder, participant or agent of or in JMB-XIII, Urban or IDS/JMB or any
entity now or hereafter having a direct or indirect ownership interest in JMB-
XIII, Urban or IDS/JMB shall have any personal liability, directly or
indirectly, under or in connection with this Agreement or any agreement made
or entered into in connection with this Agreement, or any amendment or
amendments to any of the foregoing made at any time or times, heretofore or
hereafter, and all parties hereto and their respective successors and assigns
and, without limitation, all other persons and entities, shall look solely to
the assets of JMB-XIII, Urban or IDS/JMB for the payment of any claim or for
any performance hereunder, and such parties hereby waive any and all such
personal liability. For purposes of this paragraph, in no event shall a
deficit capital account of any direct or indirect partner in JMB-XIII, Urban
or IDS/JMB nor any obligation of any direct or indirect partner in JMB-XIII,
Urban or IDS/JMB to restore a deficit capital account or to contribute capital
to JMB-XIII, Urban or IDS/JMB (or to any other partnership that is a direct or
indirect partner therein) at any time be deemed to be an asset or property of
JMB-XIII, Urban or IDS/JMB, and the parties hereto, their respective
successors and assigns and all other persons and entities shall have no right
to collect, enforce or proceed against or with respect to any such deficit
capital account or obligation to restore or contribute. The limitations of
liability provided in this paragraph are in addition to, and not in limitation
of, any limitation on liability applicable to JMB-XIII, Urban or IDS/JMB
provided by law or by any other contract, agreement or instrument.
b. TIME OF THE ESSENCE. Time is of the essence
of this Agreement. Whenever action must be taken (including the giving of
notice or the delivery of documents) under this Agreement during a certain
period of time or by a particular date that ends or occurs on a non-business
day, then such period or date shall be extended until the immediately
following business day other than Saturday, Sunday or a federal or Illinois or
Florida State holiday.
c. CAPTIONS. Paragraph headings shall not be
used in construing this Agreement.
d. GOVERNING LAW. This Agreement shall be
construed and enforced in accordance with the laws of the State of Illinois
(without regard to conflicts of law).
e. ATTORNEYS' FEES. If any party obtains a
judgment against any other party by reason of a breach of this Agreement, a
reasonable attorneys' fee as fixed by the court shall be included in such
judgment.
f. PRESS RELEASES. Any press release issued
with respect to the transactions contemplated by this Agreement shall be
subject to the prior approval of all parties.
g. COUNTERPARTS. This Agreement may be
executed in several counterparts, each of which shall be deemed to be an
original, but all of which shall constitute one and the same document.
h. ASSIGNMENT. No party may assign or transfer
its rights or obligations under this Agreement without the prior written
consent of the other parties, which consent may be withheld in such party's
sole and absolute discretion. No consent given by a party to any transfer or
assignment of the other party's rights or obligations hereunder shall be
construed as a consent to any other transfer or assignment of a party's rights
or obligations hereunder. No transfer or assignment in violation of the
provisions hereof shall be valid or enforceable. In the event of a permitted
transfer by either party in accordance with the provisions hereof, the
transferee shall assume in writing all of the transferor's obligations and
liabilities hereunder, but the transferor shall not be released from its
obligations hereunder. Subject to the foregoing, this Agreement and the terms
and provisions hereof shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
i. NOTICES. Any notice which a party is
required or may desire to give the other parties shall be in writing and may
be personally delivered or given by United States registered or certified
mail, return receipt requested, addressed as set forth below (subject to the
right of a party to designate a different address for itself by notice
similarly given). Any notice so given by United States mail shall be deemed
to have been given on the second day after the same has been deposited in the
United States as registered or certified matter, addressed as provided below,
with postage thereon fully prepaid. Any notice not given by registered or
certified mail as aforesaid shall be deemed to have been given upon receipt of
the same by the party to whom the same is to be given.
TO JMB-XIII:
JMB Income Properties, Ltd.-XIII
900 North Michigan Avenue
Chicago, Illinois 60611
Attention: Gary Nickele, Esq.
Mr. Glenn Emig
AND WITH A COPY TO:
Pircher, Nichols & Meeks
1999 Avenue of the Stars, Suite 2600
Los Angeles, California 90067
Attention: Real Estate Notices (GML/SCS)
TO URBAN:
Urban Shopping Center, L.P.
900 North Michigan Avenue
Chicago, Illinois 60611
Attention: Mr. Michael G. Hilborn
TO IDS/JMB:
IDS/JMB Balanced Income Growth, Ltd.
900 North Michigan Avenue
Chicago, Illinois 60611
Attention: Gary Nickele, Esq.
Mr. Glenn Emig
AND WITH A COPY TO:
Pircher, Nichols & Meeks
1999 Avenue of the Stars, Suite 2600
Los Angeles, California 90067
Attention: Real Estate Notices (GML/SCS)
j. CONFIDENTIALITY. The parties hereto agree
to use good faith reasonable efforts to hold the information concerning the
other parties hereto in a confidential manner; provided, however, such
information may be disclosed as reasonably required to any such party's
directors, employees, agents, partners, lenders, accountants, investors,
attorneys or other professionals who reasonably
need to be informed respecting the transactions hereunder or as may otherwise
be required by law.
k. WAIVER. Except as herein expressly provided
or in any agreement, instrument or document herein provided to be delivered,
no waiver by a party of any breach of this Agreement or of any warranty or
representation hereunder by another party shall be deemed to be a waiver of
any other breach of any kind or nature (whether preceding or succeeding and
whether or not of the same or similar nature) and no acceptance of payment or
performance by a party after any such breach by another party shall be deemed
to be a waiver of any breach of this Agreement or of any representation or
warranty hereunder by such other party. No failure on the part of a party to
exercise any right it may have by the terms hereof or by law upon the default
of another party, and no delay in the exercise of such right shall prevent the
exercise thereof by the first party at any time when such other party may
continue to be so in default, and no such failure or delay shall operate as a
waiver of any default, or as a modification in any respect of the provisions
of this Agreement.
i. NUMBER; GENDER. Whenever the singular or
plural number, masculine or feminine or neuter gender is used herein, it shall
equally include the others.
m. ENTIRE AGREEMENT. This Agreement contains
the entire agreement between the parties respecting the matters herein set
forth and supersedes all prior agreements between the parties respecting such
matters.
n. NO THIRD PARTY BENEFICIARIES. Subject to
Paragraph 5.a. hereof, nothing in this Agreement, expressed or implied, is
intended to confer any rights or remedies upon any person, other than the
parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
"JMB-XIII"
JMB INCOME PROPERTIES LTD.-XIII
an Illinois limited partnership
General Partner
By: JMB Realty Corporation
a Delaware corporation,
General Partner
By: DENNIS M. QUINN
Name: Dennis M. Quinn
Title: Senior Vice President
"IDS/JMB"
IDS/JMB BALANCED INCOME GROWTH, LTD.,
an Illinois limited partnership,
By: INCOME GROWTH MANAGERS, INC.,
an Illinois corporation,
General Partner
By: DENNIS M. QUINN
Name: Dennis M. Quinn
Title: Senior Vice President
"URBAN"
URBAN SHOPPING CENTERS, L.P.,
an Illinois limited partnership,
By: URBAN SHOPPING CENTERS, INC.,
a Maryland corporation,
General Partner
By: MICHAEL G. HILBORN
Name: Michael G. Hilborn
Title: Senior Vice President
EXHIBIT 10.6 Indemnity Agreement dated as of April 1, 1996 by West Dade
County Associates for the benefit of JMB Income Properties, Ltd. - XIII and
IDS/JMB Balanced Income Growth, Ltd.
EXHIBIT F
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INDEMNITY AGREEMENT
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THIS INDEMNITY AGREEMENT ("AGREEMENT") is made as of April 1, 1996 by
WEST DADE COUNTY ASSOCIATES, a Florida general partnership (the "INDEMNITOR")
composed of DeBARTOLO REALTY PARTNERSHIP, a Delaware limited partnership
("DeBARTOLO"),. and URBAN SHOPPING CENTERS, L.P., an Illinois limited
partnership ("URBAN"), for the benefit of JMB INCOME PROPERTIES, LTD.-XIII, an
Illinois limited partnership, and IDS/JMB BALANCED INCOME GROWTH, LTD., an
Illinois limited partnership (hereinafter referred to individually and
collectively as "BENEFICIARY").
WITNESSETH:
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WHEREAS, Beneficiary has immediately prior sold and transferred all
of its right, title and interest in and to West Dade County Associates to
DeBartolo and Urban; and
WHEREAS, as a condition to said sale and transfer, Beneficiary has
required that Indemnitor indemnify and hold Beneficiary from and against those
certain liabilities and obligations hereinafter described;
NOW, THEREFORE, as an inducement to Beneficiary to complete said sale
and transfer, and in consideration of $10.00, the mutual covenants and
agreements herein contained, and other good and valuable consideration paid by
each party to the other, the receipt and sufficiency off which are hereby
acknowledged, Indemnitor agrees as follows:
1. INDEMNITY. Indemnitor hereby agrees to pay, protect, defend,
indemnify and hold Beneficiary (which term, as used in this Agreement, shall
also include each Beneficiary's successors and assigns, and their respective
directors, officers, employees, partners, members and attorneys) harmless from
and against any and all liabilities, obligations, losses, damages, costs and
expenses (including, without limitation, reasonable attorneys' fees, costs and
disbursements), causes of action, suits, claims, lawsuits, demands and
judgments of any nature or description whatsoever, which may at any time be
imposed upon, incurred by or awarded against Beneficiary, resulting from or in
connection with:
(a) Any matter which is excluded from the limitations on
personal liability contained in paragraph 18 of that certain Consolidated,
Modified, Renewed and Restate Promissory Note dated December 21, 1993 by West
Dade County Associates unto The Prudential Insurance Company of America, and
all corresponding provisions which impose personal liability that are
contained in all other documents evidencing and/or securing the indebtedness
evidenced by said Consolidated, Modified, Renewed and Restated Promissory
Note, EXCEPT, in all events, such liabilities, obligations, losses, damages,
costs and expenses (including, without limitation, reasonable attorneys' fees,
costs and disbursements), causes of action, suits, claims, lawsuits, demands
and judgments of any nature or description whatsoever arising out of,
resulting from or in connection with the acts of Beneficiary, as to which
Indemnitor shall have no liability hereunder, and which Beneficiary shall
protect, indemnify, defend, pay and hold Indemnitor harmless from and against;
and
(b) West Dade County Associates and/or its property, but
only to the extent that same arise, accrue, mature and/or relate to any period
on or after the date hereof.
2. NO WAIVER. No provision of this Agreement shall be deemed to
have been waived unless such waiver shall be in writing, signed by the party
against whom such waiver is sought to be enforced.
3. REMEDIES CUMULATIVE. Each right, privilege and remedy
afforded to Beneficiary by the provisions of this Agreement shall be separate,
distinct and cumulative and shall be in addition to every other right or
remedy provided for in this Agreement or now or hereafter existing at law or
in equity. Beneficiary's exercise or commencement of exercise of any one or
more of the rights and/or remedies provided for in this Agreement or now or
hereafter existing at law or in equity shall not be deemed or construed to be
a waiver of or to prejudice or preclude the concurrent or later exercise by
Beneficiary of any or all other rights and/or remedies provided for in this
Agreement or now or hereafter existing at law or in equity.
4. SUCCESSIVE ACTIONS. A separate right of action hereunder
shall arise each time Beneficiary acquires knowledge of any matter indemnified
by Indemnitor under this Agreement. Separate and successive actions may be
brought hereunder to enforce any of the provisions hereof at any time and from
time to time. No action hereunder shall preclude any subsequent action.
5. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which, when so executed and delivered, shall be deemed
an original, and all of which shall together constitute one and the same
agreement, and shall be binding on the signatories; and the signature of any
of the parties hereto to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
6. MISCELLANEOUS. This Agreement (a) expresses the parties
entire understanding and agreement with respect to the subject matter hereof,
all prior agreements between the parties with respect to the subject matter
hereof being merged herein and extinguished; (b) shall be binding upon
Indemnitor, and shall inure to the benefit of Beneficiary, and their
respective heirs, legal
representatives, successors and assigns; (c) may only be made by written
agreement executed by all parties hereto; and (d) shall be governed by, and
shall be construed and enforced in accordance with, the laws of the State of
Florida. Each signatory hereto certifies that he or she is duly authorized
and empowered to sign and deliver this Agreement on behalf of all entities
named below on whose behalf he or she has so acted.
IN WITNESS WHEREOF, the parties hereto have each caused this
Agreement to be executed, acknowledged and delivered in multiple counterparts
as of the date first above written.
WEST DADE COUNTY ASSOCIATES
BY: DeBARTOLO REALTY PARTNERSHIP, L.P.,
a Delaware limited partnership, General Partner
By: DeBartolo Realty Corporation,
an Ohio corporation,
its Managing General Partner
By: KIM A. RIECK
Kim A. Rieck, Sr. Vice President
BY: URBAN SHOPPING CENTERS, L.P.,
General Partner
By: Urban Shopping Centers, Inc.
its sole general partner
By:
Title: Sr. Vice President
