EXHIBIT 10-N
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PARTNERSHIP INTEREST
PURCHASE AGREEMENT
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(New Park Mall; Newark, California)
THIS AGREEMENT (this "Agreement") made and entered into as of the ___
day of November, 1998, by and among CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XV, an Illinois limited partnership ("Carlyle-XV"), CARLYLE
REAL ESTATE LIMITED PARTNERSHIP-XVI, an Illinois limited partnership
("Carlyle-XVI") (Carlyle-XV and Carlyle-XVI, individually and collectively,
are sometimes hereinafter called "Seller"), and NEWPARK MALL L.L.C.,
a Delaware limited liability company ("NewPark L.L.C."), and ALAMEDA MALL
L.L.C., a Delaware limited liability company ("Alameda L.L.C.") (NewPark
L.L.C. and Alameda L.L.C., individually and collectively, are sometimes
hereinafter called "Buyer").
WITNESSETH, THAT WHEREAS:
A. Carlyle-XV and Carlyle-XVI are all of the partners of
JMB/NewPark Associates, an Illinois general partnership (the
"Partnership");
B. Pursuant to that certain Liquidation Agreement dated as of
November 13, 1998 (the "Liquidation Agreement"), the Partnership and
GGP-NEWPARK L.L.C., a Delaware limited liability company ("GGP-Newpark
L.L.C.") have dissolved New Park Associates, a California general
partnership (the "Dissolved Partnership"), and caused all of the assets of
the Dissolved Partnership, consisting of the property commonly known as New
Park Mall, Newark, California and related assets (collectively, the
"Business Property"), to be transferred to them as tenants-in-common;
C. Seller desires to sell, and Buyer desires to purchase, all of
Seller's interest in the Partnership in the manner hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
undertakings of the parties hereto, it is hereby agreed as follows:
1. PURCHASE AND SALE. Seller shall sell to Buyer, and Buyer
shall purchase from Seller, all of Seller's right, title and interest in
and to the Partnership and any and all property owned by the Partnership
(individually and collectively, the "Seller Interest"), upon the terms,
covenants and conditions hereinafter set forth.
2. PURCHASE PRICE. Subject to the adjustments hereinafter
provided, the purchase price (the "Purchase Price") of the Seller Interest
is (i) Sixteen Million and No/100 Dollars ($16,000,000.00) plus or minus
(ii) one-half (1/2) of the "Partners' Equity Amount", as defined in
Paragraph 4 below. An amount equal to the $16,000,000 plus or minus the
"Base Partners' Equity Amount" as defined in Paragraph 4A below (the amount
to be paid as aforesaid being herein called the "Closing Payment") shall be
paid on the Closing Date by wire transfer to Seller of immediately
available federal funds in accordance with wiring instructions to be
provided by Seller in connection with the closing hereunder (and allocated
between each Seller as set forth in such instructions).
3. CLOSING. The closing of the sale and purchase herein
provided shall be consummated on November 18, 1998 (the "Closing Date").
On or before 11:00 a.m. Central time on the Closing Date, (a) Buyer shall
deliver to Seller (i) the Closing Payment by wire transfer of immediately
available federal funds as aforesaid, and (ii) two (2) duly executed and
acknowledged counterpart originals of the assignment and assumption of
partnership interest covering the Seller Interest, in the form of Exhibit
"A" attached hereto ("Assignment and Assumption"), (b) Seller shall deliver
to Buyer two (2) duly executed and acknowledged counterpart originals of
the Assignment and Assumption, (c) Seller and Buyer shall each deliver
legal opinions respecting due organization and authorization in the forms
set forth in Exhibit "B" attached hereto, and (d) Seller and Buyer shall
each deliver such other documents as may be reasonably requested by the
other in order to effectuate the transactions provided for herein (provided
the same do not materially increase the costs to, or liability or
obligations of, such party in a manner not otherwise provided for herein).
Without limitation thereon, Buyer shall promptly cause the name of the
Partnership to be changed so as to delete any reference to JMB. At the
request of either party (exercised in writing prior to the Closing Date),
the deliveries to be made hereunder may be accomplished through appropriate
escrow arrangements with a reputable title company or other reputable
escrow holder pursuant to escrow instructions to be executed among the
parties in form reasonably acceptable to such parties in order to
effectuate the interest hereof.
4. BALANCE SHEET ADJUSTMENTS.
A. BASE BALANCE SHEET. At least three (3) business
days prior to the Closing Date, Buyer shall deliver to Seller a preliminary
balance sheet (the "Base Balance Sheet") for the Dissolved Partnership as
of the end of the most recent month which precedes the Closing Date (the
"Base Balance Sheet Date") and a statement of estimated accrued revenues
and estimated accrued expenses for the Business Property for the month of
Closing. The Base Balance Sheet shall include a certification of Buyer's
preliminary calculation of partners' capital as of such date plus or minus
the product of (i) the excess of estimated accrued revenues over estimated
accrued expenses for the month of Closing as set forth on the Base Balance
Sheet multiplied by (ii) a fraction in which the numerator is the number of
days to have elapsed in the month of Closing prior to Closing and the
denominator is 30 (e.g., provided the Closing occurs November 18, the
fraction would be 17/30) (the "Base Partners' Equity Amount"). The Base
Balance Sheet shall be prepared by Buyer in good faith in accordance with
the procedures set forth in Exhibit "C" hereto, and (together with the Base
Partners' Equity Amount) shall be subject to Seller's reasonable approval
on or before Closing.
B. CLOSING BALANCE SHEET.
(1) On or before December 10, 1998, Buyer will
cause to be prepared and delivered to Seller a balance sheet of the
Dissolved Partnership as of the Base Balance Sheet Date and a statement of
accrued revenues and accrued expenses for the Business Property for the
month of closing (the "Closing Balance Sheet"), together with a certificate
based on such Closing Balance Sheet setting forth Buyer's calculation of
partners' capital as of the Base Balance Sheet Date plus or minus the
product of (i) the excess of accrued revenues over accrued expenses for the
Business Property for the month of Closing as set forth on the Closing
Balance Sheet multiplied by (ii) a fraction in which the numerator is the
number of days to have elapsed in the month of Closing prior to the day of
Closing and the denominator is 30 (the "Partners' Equity Amount"). The
Closing Balance Sheet shall be prepared by Buyer in good faith in
accordance with the procedures set forth in Exhibit "C" hereto.
(2) If Seller disagrees with Buyer's calculation
of the Partners' Equity Amount, Seller may, within five (5) business days
after delivery of the documents referred to in Paragraph 4(B)(1), deliver a
notice to Buyer disagreeing with such calculation and setting forth
Seller's calculation of such amounts. Any such notice of disagreement
shall specify those items or amounts as to which Seller disagrees, and
Seller shall be deemed to have agreed with all other items and amounts
contained in the Closing Balance Sheet and the Buyer's calculation of the
Partners' Equity Amount.
(3) If a notice of disagreement shall be duly
delivered pursuant to Paragraph 4(B)(2), Seller and Buyer shall, during the
five (5) business days following such delivery, use their best efforts to
reach agreement on the disputed items or amounts in order to determine, as
may be required, the "Final Partners' Equity Amount" (as defined below)
which amount shall not be less than the amount thereof shown in Buyer's
calculation delivered pursuant to Paragraph 4(B)(1) nor more than the
amounts thereof shown in Seller's calculation delivered pursuant to
Paragraph 4(B)(2). "Final Partners' Equity Amount" means the Partners'
Equity Amount as shown in Buyer's calculation delivered pursuant to
Paragraph 4(B)(1) if no notice of disagreement with respect thereto is duly
delivered pursuant to Paragraph 4(B)(2); or, if such a notice of
disagreement is delivered, as agreed by Seller and Buyer pursuant to
Paragraph 4(B)(3).
(4) Seller and Buyer agree that they will
reasonably cooperate and assist in the preparation of the Closing Balance
Sheet, the calculation of the Final Partners' Equity Amount and in the
conduct of the reviews referred to in this Section, including without
limitation, the making available to the extent necessary of books, records,
work papers and personnel. Unless otherwise agreed to in writing by
Seller, the final determination of all adjustment amounts hereunder shall
occur not later than December 20, 1998.
C. ADJUSTMENT TO PURCHASE PRICE.
(1) The Purchase Price will be adjusted as
follows: if the Final Partners' Equity Amount exceeds the Base Partners'
Equity Amount as set forth on the Base Balance Sheet, Buyer shall pay to
Seller, as an adjustment to the Purchase Price, one-half (1/2) of the
amount of such excess. If the Base Partners' Equity Amount exceeds the
Final Partners' Equity Amount, Seller shall pay to Buyer as an adjustment
to the Purchase Price, one-half (1/2)of the amount of such excess.
(2) Any payment pursuant to Paragraph 4(C)(1)
shall be made within five (5) business days after the Final Partners'
Equity Amount has been determined by Buyer or Seller, as the case may be,
by wire transfer of immediately available federal funds as directed by the
receiving party (or otherwise agreed by the parties).
D. CLOSING COSTS. Seller and Buyer shall each pay
one-half (1/2) of the costs of any escrow established in connection with
the closing hereunder. Seller shall pay its own legal fees in connection
with the transactions under this Agreement, together with an amount equal
to $35,200 of any documentary transfer taxes which may be payable in
connection with the transactions contemplated under or in connection with
this Agreement or the Liquidation Agreement. Buyer shall pay its own legal
fees in connection with the transactions under this Agreement, together
with all other closing costs, if any, which may be incurred in connection
with the transactions contemplated in this Agreement, including any
transfer fees and other fees and costs imposed or required to be paid by
"CIGNA" (as hereinafter defined), all transfer taxes other than those
referred to above, and any intangible and other taxes, if any, recording or
filing charges for any instruments or documents which may be recorded or
filed, if any, and all title, survey or escrow fees, if any.
E. PROFITS AND LOSSES OF THE PARTNERSHIP PRIOR TO
CLOSING; TAX RETURNS. Subject to the provisions set forth in subparagraph
B above, the parties confirm that profits and losses of the Partnership for
the period from January 1, 1998 through the Closing Date shall be allocated
for tax reporting purposes pursuant to the applicable provisions of the
Partnership Agreement. Buyer will cooperate with Seller in providing and
preparing such information and items as may be required in order to timely
prepare and deliver tax returns and other similar items after the Closing
Date (and, in connection therewith, after the Closing Date Buyer shall
continue to provide Seller full access to all books and records of the
Partnership and to all other financial information as may be reasonably
required in connection with such determinations).
5. REPRESENTATIONS AND WARRANTIES.
A. REPRESENTATIONS AND WARRANTIES OF SELLER. Each
Seller hereby represents and warrants to Buyer as follows:
(1) Such Seller is a limited partnership, duly
organized, validly existing and in good standing under the laws of the
State of Illinois.
(2) Such Seller is duly authorized, and qualified
under any and all applicable laws, regulations, ordinances and orders to do
all things required of it, under and in connection with this Agreement.
(3) Such Seller has the right, power and
authority to enter into and perform the terms of this Agreement and to
consummate the transactions contemplated hereby.
(4) This Agreement and all agreements,
instruments and documents herein provided to be executed or to be caused to
be executed by such Seller are (or, in the case of agreements, instruments
and documents executed as of the Closing Date, will be as of the Closing
Date) duly authorized, executed and delivered by, such Seller and
constitute the legal, valid and binding obligations of such Seller,
enforceable against such Seller in accordance with their terms (except to
the extent enforceability may be limited by applicable bankruptcy,
insolvency and other similar debtor relief laws and equitable principals).
(5) Such Seller owns its Seller Interest, free
and clear of any and all security interests, rights, options, claims and
demands (other than any security interests and rights granted under the
Partnership Agreement or under the partnership agreement of the Dissolved
Partnership or the agreements in dissolution thereof) ("Liens").
(6) Except with respect to the CIGNA loan
documents and any agreements respecting the Business Property, the
execution, delivery and performance of this Agreement by each Seller do not
and will not (with the giving of notice and/or the passage of time)
violate, conflict with, result in a breach of, loss of rights or creation
of any Liens upon the Seller Interest of such Seller or require the consent
of or filing with any other person or entity (including without limitation
any governmental bodies, agencies or instrumentalities) under (a) the
organizational documents of such Seller, (b) any agreement, commitment or
instrument to which such Seller is a party or by which either such Seller
or its assets are bound or (c) any law, ordinance, rule, regulation, order,
judgment, decree or the like to which either such Seller or its assets are
subject.
(7) The Partnership is a general partnership duly
formed and validly existing under the laws of the State of Illinois with
full partnership power and authority to own an undivided interest in the
Business Property and conduct the business now being conducted by it. The
Seller Interest constitutes all of the equity interests in the Partnership
and no person or entity (other than Buyer ) has any option or other right
to acquire any Seller Interest or portion thereof, any other equity
interest in the Partnership or any security or instrument convertible into
any such equity interest. A true, correct and complete copy of the
partnership agreement of the Partnership and any and all amendments and
supplements thereto (which are described in the Assignment and Assumption
attached as Exhibit "A" hereto) have been delivered to Buyer, such
partnership agreement and amendments and supplements constitute the entire
agreement of Buyer with respect to the Partnership and there are no oral or
written amendments or supplements thereto. The sole asset of the
Partnership is its undivided interest in the Business Property (and prior
thereto its general partner interest in the Dissolved Partnership), and the
Partnership has no liabilities or obligations other than the liabilities
and obligations assumed by the Partnership and GGP-NewPark L.L.C. pursuant
to Section 3 of the Liquidation Agreement. The liabilities and obligations
assumed by the Partnership and GGP-NewPark L.L.C. pursuant to Section 3 of
the Liquidation Agreement (including, without limitation, the CIGNA loan
documents), are hereinafter referred to as the "Business Property
Liabilities". Immediately prior to the liquidation of the Dissolved
Partnership, the Partnership owned its partnership interest in the
Dissolved Partnership free and clear of all Liens (other than any security
interests and rights granted under the partnership agreement for the
Dissolved Partnership) and the Partnership has not granted to any other
person or entity (other than GGP-Newpark L.L.C.) the option or other right
to acquire such interest or any portion thereof, an interest in the
Dissolved Partnership or a security or instrument convertible into an
interest in the Dissolved Partnership.
(8) Other than as disclosed herein, neither such
Seller nor the Partnership has entered into any agreements or incurred any
liability on behalf of the Dissolved Partnership or in respect of the
Business Property for which the Partnership would be liable which is not
reflected in the books and records relating to the Business Property or
which was not otherwise requested or consented to by GGP-Newpark L.L.C.,
"Manager" (as defined in Paragraph B(1))or its or their
predecessors-in-interest or affiliates.
B. REPRESENTATIONS AND WARRANTIES OF BUYER. Each
Buyer hereby represents and warrants to Seller as follows:
(1) Except as set forth in Paragraph 5A above,
the sale of the Seller Interest is and will be made on an "as is" basis,
without representations and warranties of any kind or nature, express,
implied, or otherwise, including, but not limited to, any representation or
warranty concerning title to the Business Property, the physical condition
of the Business Property (including, but not limited to, the condition of
the soil or the improvements), the environmental condition of the Business
Property (including, but not limited to, the presence or absence of
hazardous substances on or respecting the Business Property), the
compliance of the Business Property with applicable laws and regulations
(including, but not limited to, zoning and building codes or the status of
development or use rights respecting the Business Property), the financial
condition of the Business Property or the Partnership or any other
representation or warranty respecting any income, expenses, charges, liens
or encumbrances, rights or claims on, affecting or pertaining to the
Partnership or the Business Property or any part thereof. Such Buyer
acknowledges that an affiliate of such Buyer is an existing partner in the
Dissolved Partnership, and that such Buyer is also affiliated with General
Growth Management, Inc. ("Manager"), the manager of the Business Property.
Such Buyer acknowledges that, except as to matters specifically set forth
in Paragraphs 5A above, such Buyer will acquire its Seller Interest solely
on the basis of (a) its own physical and financial examination of the
Business Property (such Buyer having completed all such due diligence
reviews, examinations and inspections deemed necessary by such Buyer) and
(b) information and knowledge in its possession and in the possession of
Manager. As a result of its affiliate's existing interest in the
Partnership and/or its affiliations with Manager, as applicable, such Buyer
is not relying upon, and has no need to rely upon, any knowledge or
information in the possession of either Seller with respect to any of the
foregoing matters except as set forth herein.
(2) Such Buyer is a limited liability company,
duly organized, validly existing and in good standing under the laws of the
State of Delaware.
(3) Such Buyer has the right, power and authority
to enter into and perform the terms of this Agreement and to consummate the
transactions contemplated hereby.
(4) This Agreement and all agreements,
instruments and documents herein provided to be executed or to be caused to
be executed by such Buyer is (or, in the case of agreements, instruments
and documents executed as of the Closing Date, will be as of the Closing
Date) duly authorized, executed and delivered by, such Buyer and constitute
the legal, valid and binding obligations of such Buyer, enforceable against
such Buyer in accordance with their terms (except to the extent
enforceability may be limited by applicable bankruptcy, insolvency and
other similar debtor relief laws and equitable principles).
(5) The execution, delivery and performance of
this Agreement by each Buyer do not and will not (with the giving of notice
and/or the passage of time) violate, conflict with, result in a breach of
or loss of rights under or require the consent of or filing with any other
person or entity (including without limitation any governmental bodies,
agencies or instrumentalities) under (a) the organizational documents of
either Buyer, (b) any agreement, commitment or instrument to which either
Buyer is a party or by which either Buyer or its assets are bound or
(c) any law, ordinance, rule, regulation, order, judgment, decree or the
like to which Buyer or Buyer's assets are subject.
6. INDEMNIFICATION.
A. INDEMNIFICATION BY BUYER AND THE PARTNERSHIP. As
of the Closing Date, Buyer, on behalf of itself and the Partnership (as it
is constituted after the Closing of the transactions hereunder) shall hold
harmless, indemnify and defend Seller from and against all claims, rights,
demands, obligations, liabilities, costs and expenses (including reasonable
attorneys' fees) of any kind or nature related to the Business Property
Liabilities and any agreements, contracts or other matters respecting the
same (and Buyer, on behalf of itself and the reconstituted Partnership,
shall release Seller from all such matters). The foregoing indemnification
shall include any and all obligations of the Dissolved Partnership, the
Partnership or Seller (or its constituent partners) under or in connection
with that certain loan in the original principal amount of $60,000,000,
made to the Dissolved Partnership by Connecticut General Life Insurance
Company ("CIGNA") (including the Environmental Indemnity Agreement given in
connection therewith) other than liabilities or obligations for which
Seller is obligated to indemnify Buyer pursuant to Paragraph 6B. In
addition, Buyer shall hold harmless, indemnify and defend Seller from and
against any loss or damage to Seller resulting from any inaccuracy in or
breach of any representation and warranty of Buyer under this Agreement (or
any agreement executed in connection herewith) or resulting from any breach
or default by Buyer under this Agreement (or any agreement executed in
connection herewith).
B. INDEMNIFICATION BY SELLER. Each Seller shall hold
harmless, indemnify and defend Buyer from and against any loss or damage to
Buyer (including without limitation reasonable attorneys' fees) resulting
from any inaccuracy in or breach of any representation and warranty of such
Seller under this Agreement (or any agreement executed in connection
herewith) or resulting from any breach or default by such Seller under this
Agreement (or any agreement executed in connection herewith) or resulting
from any liabilities or obligations of the Partnership other than the
Business Property Liabilities.
7. BROKERAGE MATTERS.
A. Except as set forth in Section 7B, Seller
represents and warrants to Buyer, and Buyer represents and warrants to
Seller, that no broker or finder has been engaged by it, respectively, in
connection with any of the transactions contemplated by this Agreement or
to its knowledge is in any way connected with any of such transactions. In
the event of a claim for broker's or finder's fee or commissions in
connection herewith, then Seller shall indemnify and defend Buyer from the
same if it shall be based upon any statement or agreement alleged to have
been made by Seller or the Partnership, and Buyer shall indemnify and
defend Seller from the same if it shall be based upon any statement or
agreement alleged to have been made by Buyer. The indemnification
obligations under this Section 7A shall survive the closing of the
transactions hereunder or the earlier termination of this Agreement.
B. If and only if the sale contemplated herein closes,
Seller agrees to pay a brokerage commission to Hamptons Information
("Broker") pursuant to a separate written agreement with Broker.
8. NOTICES. Any notice which a party is required or may
desire to give the other shall be in writing and shall be sent by personal
delivery, facsimile transmission, or by mail (either [i] by United States
registered or certified mail, return receipt requested, postage prepaid, or
[ii] by Federal Express or similar generally recognized overnight carrier
regularly providing proof of delivery), addressed as follows (subject to
the right of a party to designate a different address for itself by notice
similarly given):
TO BUYER:
c/o General Growth Properties, Inc.
110 North Wacker
Chicago, Illinois
Attention: Messrs. Joel Bayer and Thomas Gates
Facsimile: (312) 960-5475
Telephone: (312) 960-5000
WITH COPY TO:
General Growth Properties, Inc.
110 North Wacker Drive
Chicago, Illinois 60606
Attention: General Counsel
Facsimile: (312) 960-5485
Telephone: (312) 960-5000
WITH COPY TO:
Neal, Gerber & Eisenberg
Two North LaSalle Street
Suite 2200
Chicago, Illinois 60602
Attention: Avram I. Feldman, Esq.
Facsimile: (312) 269-1747
Telephone: (312) 269-8000
TO SELLER:
c/o JMB Realty Corporation
900 North Michigan Avenue
12th Floor
Chicago, Illinois 60611
Attention: Mr. Glenn Emig
Facsimile: (312) 915-1023
Telephone: (312) 915-2350
WITH COPY TO:
Pircher, Nichols & Meeks
1999 Avenue of the Stars
Suite 2600
Los Angeles, California 90067
Attention: Real Estate Notices (GML)
Facsimile: (310) 201-8922
Telephone: (310) 201-8900
Any notice so given by mail shall be deemed to have been given as of the
date of delivery (whether accepted or refused) established by U.S. Post
Office return receipt or the overnight carrier's proof of delivery, as the
case may be. Any such notice not so given shall be deemed given upon
receipt of the same by the party to whom the same is to be given. Notice
given by facsimile transmission shall be deemed given upon actual receipt
of the same by the party to whom the same is to be given (as evidenced by
electronic confirmation thereof).
9. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without
regard to its conflicts of law principles.
10. LIMITATION ON LIABILITY. No constituent partner in or
agent of any Seller (other than its general partner, JMB Realty
Corporation, a Delaware corporation ("JMB")), nor any advisor, trustee,
member, director, officer, employee, beneficiary, shareholder, participant,
representative or agent of any corporation or trust that is or becomes a
constituent partner in any such Seller (including, but not limited to, JMB)
shall have any personal liability, directly or indirectly, under or in
connection with this Agreement or any agreement made or entered into under
or pursuant to the provisions of this Agreement, or any amendment or
amendments to any of the foregoing made at any time or times, heretofore or
hereafter, and Buyer, the Partnership and its or their successors and
assigns and, without limitation, all other persons and entities, shall look
solely to the assets of such Seller (and its general partner, JMB) for the
payment of any claim or for any performance, and Buyer, on behalf of
itself, the Partnership and its or their successors and assigns, hereby
waives any and all such personal liability. Notwithstanding anything to
the contrary contained in this Agreement (but subject to the provisions
regarding the personal liability of JMB that are contained in the
immediately preceding sentence), neither the negative capital account of
any constituent partner in such Seller or in any other constituent partner
of such Seller, nor any obligation of any constituent partner in such
Seller or in any other constituent partner of such Seller to restore a
negative capital account or to contribute capital to such Seller or to any
other constituent partner of such Seller, shall at any time be deemed to be
the property or an asset of such Seller or any such other constituent
partner (and neither Buyer nor the reconstituted Partnership nor any of its
or their successors or assigns shall have any right to collect, enforce or
proceed against or with respect to any partner's obligation to restore such
negative capital account or contribute).
11. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, provided each of the parties hereto executes at
least one counterpart; each such counterpart hereof shall be deemed to be
an original instrument, but all such counterparts, together, shall
constitute but one agreement.
12. FURTHER ASSURANCES. Each of Seller and Buyer agrees, at
any time and from time to time after the Closing, to execute, acknowledge
where appropriate and deliver such further instruments and other documents
and to take such other actions as the others of them may reasonably request
in order to carry out the intents and purposes of this Agreement (provided
the same do not materially increase the costs to, or liability or
obligations of, such party in a manner not otherwise provided for herein).
13. SURVIVAL. The representations, warranties, covenants and
agreements of the parties contained in this Agreement and the documents
delivered pursuant hereto shall survive the consummation of the
transactions contemplated hereby forever. The obligations of NewPark
L.L.C. and Alameda L.L.C. hereunder shall be joint and several and the
obligations of Carlyle-XV and Carlyle-XVI hereunder shall be joint and
several; provided, however, the obligations of Carlyle-XV and Carlyle-XVI
shall be such that in no event shall the liability of Carlyle-XV exceed 90%
of the overall liability of Seller and the liability of Carlyle-XVI shall
not exceed 10% of the overall liability of Seller. In the event any party
or parties hereto bring an action against any other party or parties hereto
in respect of any provision of this Agreement, the prevailing party or
parties in such action shall be entitled to recover its court costs and
reasonable attorneys' fees and expenses in the judgment rendered in such
action, including without limitation attorneys' fees incurred in an appeal
or in any bankruptcy proceeding.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
SELLER:
CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XV,
an Illinois limited partnership,
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By:______________________________________
Name:____________________________________
Title:_____________________________________
"Carlyle-XV"
CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XVI,
an Illinois limited partnership
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By:______________________________________
Name:____________________________________
Title:___________________________________
"Carlyle-XVI"
BUYER:
NEWPARK MALL L.L.C.,
a Delaware limited liability company
By:______________________________________
Name:____________________________________
Title:___________________________________
"NewPark L.L.C."
ALAMEDA MALL L.L.C.,
a Delaware limited liability company
By:______________________________________
Name:____________________________________
Title:___________________________________
"Alameda L.L.C."
EXHIBIT "A"
ASSIGNMENT AND ASSUMPTION
See Attached
ASSIGNMENT AND ASSUMPTION OF PARTNERSHIP INTEREST
FOR VALUABLE CONSIDERATION, receipt whereof is hereby acknowledged, each of
CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XV, an Illinois limited partnership
("Carlyle-XV"), and CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XVI,
an Illinois limited partnership ("Carlyle-XVI") (Carlyle-XV and
Carlyle-XVI, individually "Assignor" and collectively, "Assignors"), hereby
sells, transfers, assigns and conveys all of its right, title and interest
in and to JMB/Newpark Associates, an Illinois general partnership
("Partnership"), as such interest is described in the "Partnership
Agreement", including, but not limited to, each Assignor's interest in the
capital, profits and losses and property of the Partnership, as follows:
fifty percent (50%) to NewPark Mall L.L.C., a Delaware limited liability
company ("NewPark L.L.C."), and fifty percent (50%) to Alameda Mall L.L.C.,
a Delaware limited liability company ("Alameda L.L.C."). As used herein,
"Partnership Agreement" means that certain partnership agreement of the
Partnership dated as of December 1, 1986, captioned "Articles of
Partnership of JMB/Newpark Associates", by and between Assignors, as
amended by amendment dated as of December 1, 1986, captioned "Amendment
No. 1 to the Articles of Partnership of JMB/Newpark Associates", between
Assignors.
This Assignment and Assumption of Partnership Interest is given
pursuant to that certain Partnership Interest Purchase Agreement
("Agreement"), dated as of November ___, 1998, among Assignors, NewPark
L.L.C. and Alameda L.L.C.
The covenants, agreements, representations, warranties and
limitations provided in the Agreement with respect to the partnership
interest conveyed hereunder are hereby incorporated herein by this
reference as if herein set out in full and shall inure to the benefit of
and shall be binding upon Assignors, NewPark L.L.C. and Alameda L.L.C., and
their respective successors and assigns. Except as set forth in said
Agreement, said partnership interest is assigned without warranty or
representation, express or implied.
Each of NewPark L.L.C. and Alameda L.L.C. hereby assumes and
agrees to perform all obligations of Assignors under the Partnership
Agreement.
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IN WITNESS WHEREOF, Assignors, NewPark L.L.C. and Alameda
L.L.C. have each executed this Assignment and Assumption as of November __,
1998.
ASSIGNORS:
CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XV,
an Illinois limited partnership,
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By:______________________________________
Name:____________________________________
Title:___________________________________
"Carlyle-XV"
CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XVI,
an Illinois limited partnership
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By:______________________________________
Name:____________________________________
Title:___________________________________
"Carlyle-XVI"
NEWPARK L.L.C.:
NEWPARK MALL L.L.C.,
a Delaware limited liability company
By:______________________________________
Name:____________________________________
Title:___________________________________
ALAMEDA L.L.C.:
ALAMEDA MALL L.L.C.,
a Delaware limited liability company
By:______________________________________
Name:____________________________________
Title:___________________________________
EXHIBIT "B"
FORM OF LEGAL OPINIONS
SELLER'S COUNSEL OPINION LETTER
November __, 1998
NewPark Mall L.L.C.
Alameda Mall L.L.C.
110 North Wacker
Chicago, Illinois 60606
Re: Sale of Partnership Interests in JMB/Newpark Associates
-------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to (i) Carlyle Real Estate Limited
Partnership-XV, an Illinois limited partnership ("Carlyle-XV"), Carlyle
Real Estate Limited Partnership-XVI, an Illinois limited partnership
("Carlyle-XVI"), and JMB Realty Corporation, a Delaware corporation
("JMB"), in connection with the sale of all of the partnership interests of
Carlyle-XV and Carlyle-XVI, in JMB/Newpark Associates, an Illinois general
partnership (the "Partnership") to NewPark Mall L.L.C., a Delaware limited
liability company ("NewPark L.L.C."), and Alameda Mall L.L.C., a Delaware
limited liability company ("Alameda L.L.C."). In this connection, we have
examined the following documents (individually, a "Document" and
collectively, the "Documents"):
A. That certain agreement captioned "PARTNERSHIP INTEREST PURCHASE
AGREEMENT", dated as of the date hereof, by and among Carlyle-XV, Carlyle-
XVI, NewPark L.L.C. and Alameda L.L.C.; and
B. That certain assignment and assumption agreement captioned
"ASSIGNMENT AND ASSUMPTION OF PARTNERSHIP INTEREST", dated as of the date
hereof, by and among Carlyle-XV, Carlyle-XVI, NewPark L.L.C. and Alameda
L.L.C.
Based, and in reliance, upon (a) the assumptions herein expressed,
(b) certain inquiries made of Seller, (c) our examination of the Documents,
and (d) our examination of such other documents and provisions of law and
such other investigations as we have deemed appropriate we are of the
opinion that:
1. Each of Carlyle-XV and Carlyle-XVI is a limited partnership,
duly formed, validly existing and in good standing under the laws of the
State of Illinois with the full partnership right, power and authority to
execute, deliver and perform its obligations under each Document to which
it is a party.
2. JMB is a corporation, duly formed, validly existing and in good
standing under the laws of the State of Delaware with the full corporate
right, power and authority to execute, deliver and perform its obligations
under each Document to which it is a party.
3. The execution, delivery and performance by Carlyle-XV of each
Document to which it is a party has been duly authorized by all requisite
partnership action on the part of Carlyle- XV, and each such Document has
been duly executed by Carlyle-XV.
4. The execution, delivery and performance by Carlyle-XVI of each
Document to which it is a party has been duly authorized by all requisite
partnership action on the part of Carlyle-XVI, and each such Document has
been duly executed by Carlyle-XVI.
5. The execution and delivery by JMB of each Document to which it
is a signatory in its capacity as the general partner of each of Carlyle-XV
and Carlyle-XVI has been duly authorized by all requisite corporate action
on the part of JMB, and each such Document has been duly executed by JMB.
This opinion is limited to the matters expressly set forth herein.
This opinion is given solely for the benefit of you and your counsel, and
solely in connection with this transaction, and may not, without our
written permission, be relied upon by any other person or entity.
Very truly yours,
EXHIBIT "C"
ACCOUNTING PRINCIPLES
---------------------
The Base Balance Sheet and the Closing Balance Sheet shall be
prepared in accordance with generally accepted accounting principles
applied on the accrual basis, and the Closing Balance Sheet shall include
line items substantially consistent with those used in the Base Balance
Sheet and be prepared in accordance with accounting principles, policies
and practices consistent with those used in preparation of the Base Balance
Sheet; provided that with respect to the Base Balance Sheet and the Closing
Balance Sheet:
(a) No amount shall be recorded under the classification
"Building & Improvements", "Fixtures & Equipment" and "Land" as the
consideration for such assets consists of the $16,000,000 specified in
Paragraph 2;
(b) Net carrying amounts for or in respect of the following
shall be eliminated, with such elimination to be done, in each case net of
accumulated amortization and depreciation, allowances for bad debts and
other contra accounts: building and improvements, fixtures and equipment,
land, deferred rent and real estate mortgage; and
(c) Percentage rent (i.e., earned unbilled receivable) shall
be calculated on the straight-line method rather than the percentage of
sales method.