<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
SCHEDULE 14D-1
Tender Offer Statement Pursuant to Section 14(d)(1)
of the Securities Exchange Act of 1934
(AMENDMENT No. 13)
_______________________
ARVIDA/JMB PARTNERS, L.P.
a Delaware Limited Partnership
(Name of Subject Company)
RALEIGH CAPITAL ASSOCIATES L.P.
RALEIGH GP CORP.
ROCKLAND PARTNERS, INC.
ZEPHYR PARTNERS
(Bidder)
LIMITED PARTNERSHIP INTERESTS AND ASSIGNEE INTERESTS THEREIN
(Title of Class
of Securities)
NONE
(CUSIP Number of Class
of Securities)
_______________________
Michael L. Ashner Copy to:
Raleigh Capital Associates L.P. Mark I. Fisher
100 Jericho Quadrangle Todd J. Emmerman
Suite 214 Rosenman & Colin LLP
Jericho, New York 11735-2717 575 Madison Avenue
(516) 822-0022 New York, New York 10022-2585
(212) 940-8800
(Name, Address and Telephone Number of
Person Authorized to Receive Notices and
Communications on Behalf of Bidder)
TRANSACTION AMOUNT OF
VALUATION* FILING FEE
----------- ----------
$50,000,000 $10,000.00
*For purposes of calculating the filing fee only. This amount assumes the
purchase of 100,000 Limited Partnership Interests and Assignee Interests Therein
("Units") of the subject company for $500 per Unit in cash.
/X/ Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and date of its filing.
Amount previously paid: $10,000.00
------------
Filing Party: Raleigh Capital Associates L.P.
-------------------------------
Form or registration no.: Schedule 14D-1 Date Filed: October 17, 1996
-------------- ----------------
(Continued on following pages)
(Page 1 of 8 Pages)
<PAGE>
CUSIP No.: N/A 14D-1 Page 2 of 8 Pages
------- --- ---
- -------------------------------------------------------------------------------
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
RALEIGH CAPITAL ASSOCIATES L.P.
- -------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(See Instructions)
(a) /X/
(b) / /
- -------------------------------------------------------------------------------
3. SEC Use Only
- -------------------------------------------------------------------------------
4. Sources of Funds (See Instructions)
AF; WC
- -------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is
Required Pursuant to Items 2(e) or 2(f)
/ /
- -------------------------------------------------------------------------------
6. Citizenship or Place of Organization
Delaware
- -------------------------------------------------------------------------------
7. Aggregate Amount Beneficially Owned by Each Reporting
Person
80,342 Units
- -------------------------------------------------------------------------------
8. Check Box if the Aggregate Amount in Row (7) Excludes
Certain Shares (See Instructions)
/ /
- -------------------------------------------------------------------------------
9. Percent of Class Represented by Amount in Row (7)
19.9%
- -------------------------------------------------------------------------------
10. Type of Reporting Person (See Instructions)
PN
<PAGE>
CUSIP No.: N/A 14D-1 Page 3 of 8 Pages
------- --- ---
- -------------------------------------------------------------------------------
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
RALEIGH GP CORP.
- -------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(See Instructions)
(a) /X/
(b) / /
- -------------------------------------------------------------------------------
3. SEC Use Only
- -------------------------------------------------------------------------------
4. Sources of Funds (See Instructions)
N/A
- -------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is
Required Pursuant to Items 2(e) or 2(f)
/ /
- -------------------------------------------------------------------------------
6. Citizenship or Place of Organization
Delaware
- -------------------------------------------------------------------------------
7. Aggregate Amount Beneficially Owned by Each Reporting
Person
80,342 Units*
- -------------------------------------------------------------------------------
8. Check Box if the Aggregate Amount in Row (7) Excludes
Certain Shares (See Instructions)
/ /
- -------------------------------------------------------------------------------
9. Percent of Class Represented by Amount in Row (7)
19.9%
- -------------------------------------------------------------------------------
10. Type of Reporting Person (See Instructions)
CO
- -------------------
* Reflects beneficial ownership by Raleigh Capital Associates L.P. (of which
Raleigh GP Corp. is a general partner).
<PAGE>
CUSIP No.: N/A 14D-1 Page 4 of 8 Pages
------- --- ---
- -------------------------------------------------------------------------------
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
ROCKLAND PARTNERS, INC.
- -------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(See Instructions)
(a) /X/
(b) / /
- -------------------------------------------------------------------------------
3. SEC Use Only
- -------------------------------------------------------------------------------
4. Sources of Funds (See Instructions)
N/A
- -------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is
Required Pursuant to Items 2(e) or 2(f)
/ /
- -------------------------------------------------------------------------------
6. Citizenship or Place of Organization
Delaware
- -------------------------------------------------------------------------------
7. Aggregate Amount Beneficially Owned by Each Reporting
Person
80,347 Units*
- -------------------------------------------------------------------------------
8. Check Box if the Aggregate Amount in Row (7) Excludes
Certain Shares (See Instructions)
/ /
- -------------------------------------------------------------------------------
9. Percent of Class Represented by Amount in Row (7)
19.9%
- -------------------------------------------------------------------------------
10. Type of Reporting Person (See Instructions)
CO
- -------------------
* Reflects beneficial ownership of 5 Units by Rockland Partners, L.P. (of which
Rockland Partners, Inc. is the general partner) and 80,342 Units beneficially
owned by Raleigh Capital Associates L.P. (of which Rockland Partners, Inc. is a
general partner).
<PAGE>
CUSIP No.: N/A 14D-1 Page 5 of 8 Pages
------- --- ---
- -------------------------------------------------------------------------------
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
ZEPHYR PARTNERS
- -------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(See Instructions)
(a) /X/
(b) / /
- -------------------------------------------------------------------------------
3. SEC Use Only
- -------------------------------------------------------------------------------
4. Sources of Funds (See Instructions)
N/A
- -------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is
Required Pursuant to Items 2(e) or 2(f)
/ /
- -------------------------------------------------------------------------------
6. Citizenship or Place of Organization
New York
- -------------------------------------------------------------------------------
7. Aggregate Amount Beneficially Owned by Each Reporting
Person
80,342 Units*
- -------------------------------------------------------------------------------
8. Check Box if the Aggregate Amount in Row (7) Excludes
Certain Shares (See Instructions)
/ /
- -------------------------------------------------------------------------------
9. Percent of Class Represented by Amount in Row (7)
19.9%
- -------------------------------------------------------------------------------
10. Type of Reporting Person (See Instructions)
PN
- -------------------
* Reflects beneficial ownership by Raleigh Capital Associates L.P. (of which
Zephyr Partners is a general partner).
<PAGE>
AMENDMENT NO. 13 TO SCHEDULE 14D-1
This Amendment No. 13 amends the Tender Offer Statement on Schedule 14D-1
filed with the Commission on October 17, 1996 by Raleigh Capital Associates
L.P., a Delaware limited partnership (the "Purchaser"), as amended by Amendment
Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 thereto (the "Schedule 14D-1"),
relating to the tender offer by the Purchaser to purchase up to 100,000 of the
outstanding limited partnership interests and assignee interests therein
("Units") of Arvida/JMB Partners, L.P., a Delaware limited partnership (the
"Partnership"), at a purchase price of $500 per Unit (the "Purchase Price"),
less the amount of any distributions declared or made with respect to the Units
between October 17, 1996 (the "Offer Date") and the date of payment of the
Purchase Price by the Purchaser, net to the seller in cash, without interest,
upon the terms set forth in the Offer to Purchase dated October 17, 1996 (the
"Offer to Purchase") and in the related Letter of Transmittal, as each has been
or may be supplemented or amended from time to time (which together constitute
the "Offer"), to include the information set forth below. Terms not otherwise
defined herein shall have the meaning ascribed to them in the Schedule 14D-1 and
the Offer to Purchase.
Item 10. ADDITIONAL INFORMATION.
Item 10(f) is hereby amended as follows:
The information set forth in the press release, Supplement No. 2 to
the Offer to Purchase, Letter to Unitholders, Letter of Transmittal and the
Escrow Agreement between the Purchaser and The Herman Group, Inc., copies of
which are attached hereto as Exhibits (a)(21), (a)(22), (a)(23), (a)(24) and
(c)(1), respectively, are incorporated herein by reference.
Item 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 is hereby supplemented by adding the following, copies of
which are attached hereto as Exhibits:
(a)(21) Press Release dated April 16, 1997
(a)(22) Supplement No. 2 to Offer to Purchase dated
April 16, 1997
(a)(23) Letter to Unitholders
(c)(1) Escrow Agreement dated April 16, 1997 between
Purchaser and The Herman Group, Inc.
6
<PAGE>
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: April 16, 1997
RALEIGH CAPITAL ASSOCIATES L.P.
By: Raleigh GP Corp., General Partner
By: /s/ PETER BRAVERMAN
--------------------------------
Name: Peter Braverman
Title: Vice President
By: ROCKLAND PARTNERS, INC.,
General Partner
By: /s/ JONATHAN H. PAUL
--------------------------------
Name: Jonathan H. Paul
Title: Vice President
By: ZEPHYR PARTNERS
By: GP Aeolus Inc., General Partner
By: /s/ EDWARD MATTNER
--------------------------------
Name: Edward Mattner
Title: Vice President
By: AREHGP INC., General Partner
By: /s/ JOHN SALDARELLI
--------------------------------
Name: John Saldarelli
Title: President
RALEIGH GP CORP.
By: /s/ PETER BRAVERMAN
------------------------------------
Name: Peter Braverman
Title: Vice President
<PAGE>
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and correct.
Dated: April 16, 1997
ROCKLAND PARTNERS, INC.
By: /s/ JONATHAN H. PAUL
------------------------------------
Name: Jonathan H. Paul
Title: Vice President
ZEPHYR PARTNERS
By: GP Aeolus Inc., General Partner
By: /s/ EDWARD MATTNER
------------------------------------
Name: Edward Mattner
Title: Vice President
By: AREHGP INC., General Partner
By: /s/ JOHN SALDARELLI
------------------------------------
Name: John Saldarelli
Title: President
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ----------- -----------
99.(a)(21) Press Release dated April 16, 1997
99.(a)(22) Supplement No. 2 to Offer to Purchase dated
April 16, 1997
99.(a)(23) Letter to Unitholders
99.(c)(1) Escrow Agreement dated April 16, 1997 between
Purchaser and The Herman Group, Inc.
<PAGE>
Exhibit 99(a)(21)
<PAGE>
April 16, 1997
Jericho, New York
FOR IMMEDIATE RELEASE ....
Raleigh Capital Associates L.P. has modified the purchase price under its
offer to purchase up to 100,000 of the outstanding limited partnership interests
and assignee interests therein of Arvida/JMB Partners, L.P. to provide for $400
cash per Unit to be paid to tendering unitholders upon closing of the Offer PLUS
an additional $40 cash per Unit to be paid upon a determination by the Delaware
Chancery Court that the Purchaser has voting rights or upon acknowledgement by
the General Partner that Raleigh, as an assignee of units, has voting rights.
In connection with the foregoing purchase price modification, Raleigh has
extended the expiration date of its offer until 12:00 Midnight, New York City
time, on Tuesday, April 29, 1997. Approximately 31,067 Units had been
deposited pursuant to Raleigh's offer as of the close of business on April 15,
1997.
Raleigh has previously been forced to extend its offer as a result of the
General Partner's efforts to deny voting rights of all unitholders other than
those who acquired units in the 1987 original public offering. Raleigh strongly
believes that all unitholders have voting rights and that this is a blatant
attempt by the General Partner to disenfranchise unitholders and further
entrench itself at the economic expense of unitholders. A hearing on the issue
of voting rights was held in the Delaware Chancery Court from April 7th through
April 9th, and a decision is not expected to be rendered by the Court for at
least several weeks.
The full $440 purchase price, which will be paid if the Chancery Court
rules in favor of Raleigh or if the General Partner acknowledges that Raleigh,
as an assignee of units, has voting rights, reflects the original $500 purchase
price less the $60 per Unit cash distribution made by the Partnership during the
first quarter of 1997 and already received by unitholders.
For additional information, contact The Herman Group, Inc., the Information
Agent for Raleigh's offer, at (800) 992-6146.
<PAGE>
Exhibit 99(a)(22)
<PAGE>
SUPPLEMENT NO. 2
TO
OFFER TO PURCHASE FOR CASH
UP TO 100,000 LIMITED PARTNERSHIP INTERESTS
(AND ASSIGNEE INTERESTS THEREIN)
OF
ARVIDA/JMB PARTNERS, L.P.
BY
RALEIGH CAPITAL ASSOCIATES L.P.
- --------------------------------------------------------------------------------
THE OFFER, WITHDRAWAL RIGHTS AND PRORATION PERIOD WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON APRIL 29, 1997, UNLESS EXTENDED.
- --------------------------------------------------------------------------------
The Purchaser hereby further supplements and amends its offer to
purchase up to 100,000 Units of Arvida/JMB Partners, L.P. upon the terms and
subject to the conditions set forth in the Offer to Purchase, dated October
17, 1996, as amended (the "Offer to Purchase"), and in the related Letter of
Transmittal, as each may be further supplemented and amended from time to
time. Capitalized terms used but not defined in this Supplement No. 2 shall
have the meaning ascribed to them in the Offer to Purchase. The Expiration
Date for the Offer has been extended until 12:00 midnight, New York City
time, on April 29, 1997.
The Purchaser has modified the Purchase Price under the Offer as
follows. Subject to the terms and conditions of the Offer, promptly after
the Expiration Date, the Purchaser will pay for Units validly tendered and
not withdrawn, an amount equal to $400 per Unit (less the amount of any
distributions declared or paid by the Partnership with respect to the Units
between April 29, 1997 and the date of payment of the Purchase Price by the
Purchaser) net to the seller in cash, without interest. An additional $40
per Unit net in cash, as contingent purchase price, shall be deposited by the
Purchaser in escrow promptly after the Expiration Date for distribution to
the seller, without interest, within five business days following
determination by the Delaware Chancery Court, in the action described below,
that the Purchaser has voting rights or upon an acknowledgement by the
General Partner in writing within the next 60 days that Raleigh, as an
assignee of Units, has voting rights.
As previously disclosed, the General Partner initiated a litigation
before the Delaware Chancery Court in which it has sought a declaratory
judgment the effect of which would deny voting rights to all Unitholders
other than those who acquired Units in the 1987 original public offering. A
hearing on this matter was held in the Delaware Chancery Court on April 7th,
8th and 9th. Certain post-trial submissions are to be made to the Court and
closing arguments have not yet been scheduled. Accordingly, it is presently
contemplated that a decision will not be rendered by the Court for at least
several weeks.
A tendering Unitholder's right to the $40 contingent purchase price
discussed above constitutes an integral part of the total consideration to be
received by a tendering Unitholder. Such right (i) will not be represented
by any form of certificate or instrument, (ii) will not entitle the
Unitholder to any interest on the amount of the contingent purchase price,
(iii) will not be assignable or transferable other than by operation of law
and (iv) will not entitle the Unitholder to any rights of a securityholder,
such as voting rights and rights to dividends or distributions. The
contingent purchase price will only be payable if the Court in its initial
decision determines that Raleigh has voting rights or if the General Partner
acknowledges in writing within the next 60 days that Raleigh, as an assignee
of Units, has voting rights. Payment will not be dependent on the outcome of
any appeal of the decision of the Chancery Court. The contingent purchase
price deposited in escrow by the Purchaser will be paid to tendering
Unitholders in accordance with the terms of an Escrow Agreement between the
Purchaser, and The Herman Group, Inc., as Escrow Agent, a copy of which is
attached as an exhibit to the Purchaser's Schedule 14D-1, as amended, filed
with the Commission in connection with the Offer.
SELECTED FINANCIAL DATA.
Set forth below is a summary of certain financial data for the
Partnership which has been excerpted from the Partnership's Annual Report on
Form 10-K for the fiscal year ended December 31, 1996. More comprehensive
financial and other information is included in such reports and other
documents filed by the Partnership with the Commission, and the following
summary is qualified in its entirety by reference to such reports and other
documents and all the financial information and related notes contained
therein.
<PAGE>
ARVIDA/JMB PARTNERS, L.P.
(A LIMITED PARTNERSHIP)
AND CONSOLIDATED VENTURES
<TABLE>
December 31,
-----------------------------------------------------------------------
1996 1995 1994 1993 1992
------------ ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Total revenues $342,813,269 382,267,482 315,058,058 247,651,192 174,710,779
============ =========== =========== =========== ===========
Net operating income (loss) $ 29,301,748 45,181,165 52,676,462 30,689,914 (23,337,245)
============ =========== =========== =========== ===========
Equity in earnings (losses) of
unconsolidated ventures $ (177,864) 1,050,994 524,520 1,134,947 (2,225,531)
============ =========== =========== =========== ===========
Net income (loss) $ 28,011,424 41,836,686 47,197,532 29,293,058 (43,974,366)
============ =========== =========== =========== ===========
Net income (loss) per Interest(a) $ 67.47 101.91 115.37 71.78 (160.42)
============ =========== =========== =========== ===========
Total assets(b) $340,640,143 366,439,241 376,371,712 348,094,995 350,807,538
============ =========== =========== =========== ===========
Total liabilities(b) $ 90,988,318 133,773,954 179,791,958 196,004,818 228,010,419
============ =========== =========== =========== ===========
Cash distributions per Interest(c) $ 25.85 13.49 6.35 - -
============ =========== =========== =========== ===========
</TABLE>
_____________
(a) The net income (loss) per Interest is based upon the average number of
Interests outstanding during each period.
(b) The Partnership does not present a classified balance sheet as a matter
of industry practice, and as such, does not distinguish between current
and non-current assets and liabilities.
(c) Cash distributions from the Partnership are generally not equivalent to
Partnership income as determined for federal income tax purposes as
determined under generally accepted accounting principles. Cash
distributions to the holders of Interests represent a return of capital
for federal income tax purposes. During March 1996, the Partnership
made a distribution for 1995 of $10,419,160 to holders of Interests
($25.79 per Interest). In addition, during 1996, the Partnership
remitted each holder of Interests' share of a North Carolina
non-resident withholding tax on behalf of each holder of Interests.
Such payments, which totalled $25,476 (approximately $.06 per Interest),
were deemed distributions to the holders of Interests. During February
1995, the Partnership made a distribution for 1994 of $5,421,680 to its
holders of Interests ($13.42 per Interest). In addition, during the
first quarter of 1995, the Partnership remitted each holder of
Interests' share of a North Carolina non-resident withholding tax on
behalf of each holder of Interests. Such payment, which totalled
$26,784 ($.07 per Interest), was deemed a distribution to the holders of
Interests. During February 1994, the Partnership made a distribution
for 1993 of $2,565,433 to its holders of Interests ($6.35 per Interest).
There were no cash distributions in 1992 and 1993.
Taxable income in 1996 aggregated $58.16 per Unit.
April 16, 1997
2
<PAGE>
Exhibit 99(a)(23)
<PAGE>
Raleigh Capital Associates L.P.
100 Jericho Quadrangle
Jericho, New York 11735
RE: CLOSING OF OFFER
Dear Unitholder:
To facilitate the closing of the Offer, Raleigh has modified the purchase
price under its Offer to purchase your Units of Arvida/JMB Partners, L.P. as
follows. As set forth in the enclosed Supplement No. 2, the Offer now provides
for $400 cash per Unit to be paid to tendering unitholders upon closing of the
Offer PLUS an additional $40 cash per Unit to be paid upon a determination by
the Delaware Chancery Court that the Purchaser has voting rights or upon an
acknowledgement by the General Partner that Raleigh, as an assignee of units,
has voting rights. The additional $40 per Unit will be paid regardless of any
appeal of the Chancery Court's decision. Prior to payment for Units which have
been tendered, Raleigh is required by law to extend the closing date of the
Offer, and accordingly has extended the Offer until April 29, 1997.
As you know, Raleigh has previously been forced to extend the Offer as a
result of the General Partner's efforts to deny voting rights of all unitholders
other than those who acquired units in the 1987 original public offering.
Raleigh strongly believes that all unitholders have voting rights and that this
is a blatant attempt by the General Partner to disenfranchise unitholders and
further entrench itself at the economic expense of unitholders. A hearing on
the issue of voting rights was held in the Delaware Chancery Court from April
7th through April 9th, and a decision is not expected to be rendered by the
Court for at least several weeks.
THE FULL $440 PURCHASE PRICE, WHICH WILL BE PAID IF THE CHANCERY COURT
RULES IN FAVOR OF RALEIGH OR IF THE GENERAL PARTNER ACKNOWLEDGES THAT RALEIGH,
AS AN ASSIGNEE OF UNITS, HAS VOTING RIGHTS, REFLECTS THE ORIGINAL $500 PURCHASE
PRICE LESS THE $60 PER UNIT CASH DISTRIBUTION MADE BY THE PARTNERSHIP DURING THE
FIRST QUARTER OF 1997 AND ALREADY RECEIVED BY YOU.
You may wish to consider the following in deciding whether to tender your Units:
- The General Partner intends to engage in a lengthy five year liquidation
of the Partnership commencing in November 1997;
- According to the Partnership's 1996 Report on Form 10-K, profits for
1996 declined by 35% and may remain at these lower levels in the future due
to the completion of development activity at the Partnership's higher
priced communities;
- A $45 million litigation initiated by the Broken Sound homeowners
community against the Partnership, which the General Partner previously
stated was "without merit," has recently survived a motion to dismiss and
has been certified as a class action; and
- The General Partner's own Special Committee continues to recommend that
unitholders who have a current need or desire for liquidity tender their
units in the Offer.
If you have not already tendered your Units and wish to do so now, send a
completed and executed copy of the Letter of Transmittal and any documents
required by the Letter of Transmittal to The Herman Group using the enclosed
pre-addressed, postage paid envelope at:
THE HERMAN GROUP, INC.
2121 San Jacinto Street, 26th Floor
Dallas, Texas 75201
For information call 1-800-992-6146
RALEIGH CAPITAL ASSOCIATES L.P.
<PAGE>
Exhibit 99(c)(1)
<PAGE>
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is entered into this 16th day of
April, 1997 by and among Raleigh Capital Associates L.P. (the "Purchaser"), and
The Herman Group, Inc., as escrow agent (the "Escrow Agent").
RECITALS
WHEREAS, pursuant to the offer to purchase dated October 17, 1996, as
amended (the "Offer to Purchase") and in the related Letter of Transmittal, as
each may be further supplemented and amended from time to time, the Purchaser
has commenced a cash tender offer to acquire up to 100,000 limited partnership
interests and assignee interests therein ("Units") of Arvida/JMB Partners, L.P.,
a Delaware limited partnership;
WHEREAS, pursuant to the Offer, an amount representing contingent purchase
price shall be deposited by the Purchaser in escrow promptly after the
Expiration Date for distribution to tendering Unitholders pursuant to the Offer
or to be remitted to the Purchaser promptly following the Determination (as
hereinafter defined);
WHEREAS, a hearing in the matter entitled Arvida/JMB Partners, L.P.,
Counterclaim Plaintiff, v. Vanderbilt Income and Growth Associates, L.L.C. and
Raleigh Capital Associates L.P., Counterclaim Defendants; Vanderbilt Income and
Growth Associates, L.L.C. and Raleigh Capital Associates L.P., Reply
Counterclaim Plaintiffs v. Arvida/JMB Partners, L.P., Arvida/JMB Managers, Inc.,
et. al., Reply Counterclaim Defendants; Gladys Beasley, Intervenor-Plaintiff, v.
Arvida/JMB Partners, L.P., Defendant (the "Action") was held in the Delaware
Chancery Court (the "Court") on April 7-9, 1997 (Vanderbilt Income and Growth
Associates, L.L.C. is hereinafter referred to as "Vanderbilt"; Raleigh Capital
Associates L.P. is hereinafter referred to as "Raleigh"; and Arvida/JMB
Partners, L.P. is hereinafter referred to as "Arvida"); and
WHEREAS, the Escrow Agent is also acting as Depositary (as defined in the
Offer to Purchase) in connection with the Offer.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agreed as
follows:
SECTION 1. ESCROW.
1.1. ESTABLISHMENT OF ESCROW. Simultaneously with the deposit of
sufficient funds with the Escrow Agent, in its capacity as Depositary, as
required to consummate the Offer, the Purchaser shall deliver to the Escrow
Agent an amount (the "Escrowed Funds") equal to the product of (x) $40.00 TIMES
(y) the number of Units accepted for purchase and paid for upon expiration of
the Offer in accordance with the terms thereof. The Escrowed Funds and the
rights of tendering Unitholders thereto represent contingent purchase price and
are an integral part of the consideration to be received by tendering
Unitholders pursuant to the Offer. Such rights shall not be evidenced by any
certificate,
<PAGE>
document or instrument other than this Escrow Agreement, and do not represent
an interest in the Purchaser or any other entity.
1.2. INVESTMENT OF ESCROWED FUNDS. The Escrow Agent shall invest the
Escrowed Funds only in short-term government securities as directed by the
Purchaser. Interest earned on the Escrowed Funds shall not become part of the
Escrowed Funds, but instead shall be remitted to the Purchaser promptly after
the last day of each month commencing with the month ending April 30, 1997.
SECTION 2. RELEASE OF FUNDS.
2.1. ORDER IN FAVOR OF VANDERBILT AND RALEIGH. If the Court's final order
in the Action grants the declaratory relief sought by Vanderbilt and Raleigh and
denies the declaratory relief sought by Arvida, then the Escrowed Funds shall be
promptly distributed by the Escrow Agent, in its capacity as Depositary, to
tendering Unitholders in accordance with the terms of the Offer.
2.2. ORDER IN FAVOR OF ARVIDA. If the Court's final order in the Action
grants the declaratory relief sought by Arvida and denies the declaratory relief
sought by Vanderbilt and Raleigh, then, subject to Section 2.3 hereof, the
Escrowed Funds shall be remitted to the Purchaser.
2.3. ACKNOWLEDGEMENT BY ARVIDA GENERAL PARTNER. If, within 60 days after
the date hereof, the general partner of Arvida acknowledges in writing Raleigh's
right to vote Units, as an assignee thereof, then the Escrowed Funds shall be
promptly distributed by the Escrow Agent, in its capacity as Depositary, to
tendering Unitholders in accordance with the terms of the Offer.
SECTION 3. TERMINATION OF ESCROW.
This Agreement shall terminate upon release of the Escrowed Funds in
accordance with Section 2 above.
SECTION 4. ESCROW AGENT.
4.1. APPOINTMENT. The Purchaser hereby designates and appoints The Herman
Group, Inc., as Escrow Agent, to serve in accordance with the terms and
conditions of this Agreement. The Escrow Agent hereby accepts such appointment
and agrees to act as Escrow Agent in accordance with such terms and conditions.
4.2. COMPENSATION AND EXPENSES. The Purchaser shall pay the reasonable
compensation of the Escrow Agent for its services hereunder and shall reimburse
the Escrow Agent for its reasonable expenses incurred in connection herewith.
Any such amounts to be paid or reimbursed to the Escrow Agent in accordance with
the terms hereof shall be paid by the Purchaser out of funds separate and apart
from the Escrowed Funds.
4.3. RESIGNATION AND DISCHARGE. The Escrow Agent may resign and be
discharged from its duties or obligations hereunder at any time by giving notice
of such resignation to the Purchaser specifying a date (not less than 30 days
after the giving of such notice) when such resignation shall take
2
<PAGE>
effect. Promptly after such notice, a successor Escrow Agent shall be
appointed at the direction of the Purchaser and such successor Escrow Agent
will become Escrow Agent hereunder upon the resignation date specified in the
notice. The Escrow Agent shall continue to serve until its successor accepts
and receives the Escrowed Funds. The Purchaser may at any time substitute a
new Escrow Agent by giving notice thereof to the Escrow Agent.
4.4. LIABILITY OF ESCROW AGENT. The Escrow Agent undertakes to perform
only such duties as are specifically set forth in this Agreement, and shall have
no implied duties or obligations and shall not be charged with knowledge or
notice of any fact or circumstance not set forth herein. The Escrow Agent,
acting or refraining from acting in good faith, shall not be liable for any
mistake of fact or error of judgment by it or for any acts or omissions by it of
any kind taken in good faith, unless caused by willful misconduct or gross
negligence. Escrow Agent shall not be bound by any notice or demand, or any
waiver, modification, termination or rescission of this Agreement or any of its
terms, unless evidenced by a writing delivered to Escrow Agent. Escrow Agent
shall be entitled to rely on any written document delivered to it by the
Purchaser which the Escrow Agent in good faith reasonably believes to be
genuine, to have been signed or presented by the person or parties purporting to
sign the same and to conform to the provisions of this Agreement.
4.5. INDEMNIFICATION OF ESCROW AGENT. From and at all times after the
date of this Agreement, the Purchaser shall, to the fullest extent permitted by
law and to the extent provided herein, indemnify and hold harmless Escrow Agent
and each director, officer, employee, agent and affiliate of Escrow Agent
against any and all actions, claims, losses, damages, liabilities, costs and
expenses of any kind or nature whatsoever (including without limitation
reasonable attorneys' fees, costs and expenses) incurred by or asserted against
the Escrow Agent from and after the date hereof, whether direct, indirect or
consequential, as a result of or arising from or in any way relating to any
claim, demand, suit, action or proceeding (including any inquiry or
investigation) by any person, whether threatened or initiated, asserting a claim
for any legal or equitable remedy against any person under any statute or
regulation, including, but not limited to, any federal or state securities laws,
or under any common law or equitable cause or otherwise, arising from or in
connection with the negotiation, preparation, execution, performance or failure
of performance of this Agreement or any transactions contemplated herein,
whether or not the Escrow Agent is a party to any such action, proceeding, suit
or the target of any such inquiry or investigation; provided, however, that the
Escrow Agent shall not have the right to be indemnified for any liability
determined by a court of competent jurisdiction, subject to no further appeal,
to have resulted from the gross negligence or willful misconduct of the Escrow
Agent. If any such action or claim shall be brought or asserted against the
Escrow Agent, the Escrow Agent shall promptly notify the Purchaser in writing,
and the Purchaser shall assume the defense thereof with counsel of its choosing.
Escrow Agent shall, in its sole discretion, have the right to employ separate
counsel in any such action and to participate in the defense thereof, and the
fees and expenses of such counsel shall be paid by the Escrow Agent unless (a)
the Purchaser agrees to pay such fees and expenses, or (b) the Purchaser shall
fail to assume the defense of such action or (c) the named parties to any such
action or proceeding (including any impleaded parties) include both Escrow Agent
and the Purchaser and the Escrow Agent shall have been advised in writing by
counsel that there are one or more legal defenses available to it which are
different from or additional to those available to the Purchaser. The
obligations of the Purchaser under this Section 4.5 shall survive any
termination of this Agreement and the resignation or removal of Escrow Agent.
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SECTION 5. MISCELLANEOUS.
5.1. GOVERNING LAW; AMENDMENTS. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
giving effect to principles of conflict or laws thereof. This Agreement may not
be changed orally or modified, amended or supplemented without an express
written agreement executed by Escrow Agent and the Purchaser.
5.2. ASSIGNMENT. This Agreement, and the terms, covenants and conditions
hereof, shall be binding upon and inure to the benefit of each party's
respective successors and legal representatives. Neither the Purchaser nor the
Escrow Agent may assign any right or delegate any obligation under this
Agreement and any such attempted assignment or delegation will be null and void.
A tendering Unitholder may not transfer its contingent rights with respect to
the Escrowed Funds other than by operation of law.
5.3. HEADINGS. Section headings used herein are for convenience only and
are not to affect the construction of or be taken into consideration in
interpreting this Agreement.
5.4. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
when taken together shall constitute one and the same instrument.
5.5. ENTIRE AGREEMENT. ETC. This Agreement constitutes the entire
agreement, and supersedes all other prior agreements, understandings,
representations and warranties both written and oral, among the parties, with
respect to the subject matter hereof, and, except as otherwise expressly
provided herein, are not intended to confer upon any other person any rights or
remedies hereunder.
5.6. PARTIES IN INTEREST. This Agreement shall be binding upon and inure
to the benefit of each party hereto, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person, other than
tendering Unitholders, any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Escrow
Agreement as of the date first above written.
PURCHASER
RALEIGH CAPITAL ASSOCIATES L.P.
BY: Raleigh GP Corp.
By:/s/
---------------------------------
Title:
ESCROW AGENT
THE HERMAN GROUP, INC.
By:/s/
---------------------------------
Title:
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