EXHIBIT 10.2
------------
PARTNERSHIP INTEREST
PURCHASE AGREEMENT
(TOPANGA PLAZA; LOS ANGELES, CALIFORNIA)
THIS AGREEMENT made and entered into as of the 17th day of November,
1998, by and between JMB INCOME PROPERTIES, LTD.-XII, an Illinois limited
partnership ("Assignor"), and TOPANGA PLAZA LLC, a Delaware limited
liability company ("Assignee").
WITNESSETH, THAT WHEREAS:
A. Assignor and Topanga Center, Inc. ("TCI") have entered into
that certain agreement dated as of December 31, 1985, captioned "ARTICLES
OF PARTNERSHIP OF TOPANGA PLAZA PARTNERSHIP," as amended by that certain
agreement dated as of March 31, 1987, captioned "AMENDMENT TO ARTICLES OF
PARTNERSHIP OF TOPANGA PLAZA PARTNERSHIP," and by that certain agreement
dated as of February 1, 1994 captioned "SECOND AMENDMENT TO ARTICLES OF
PARTNERSHIP OF TOPANGA PLAZA PARTNERSHIP," which agreements constitute the
agreement of partnership for Topanga Plaza Partnership, a California
general partnership ("Partnership") (and which agreements are herein
collectively called the "Partnership Agreement").
B. TCI assigned its interest in the Partnership to Assignee
pursuant to that certain Assignment and Assumption of Partnership Interest
dated November 12, 1997.
C. Assignor desires to sell, and Assignee desires to purchase, all
of Assignor'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. CERTAIN DEFINITIONS.
A. DEFINITIONS IN PARTNERSHIP AGREEMENT. Unless
otherwise expressly defined in this letter agreement, all defined terms
used in this letter agreement shall have the meaning set forth in the
Partnership Agreement.
B. ACCRUAL AMOUNT. As used herein, means the
aggregate amount of any distributions or other sums or proceeds which may
have accrued in favor of Assignor under the Partnership Agreement prior to
the Closing Date.
C. PRORATION AMOUNT. As used herein, means the net
amount of the credit (or debit) to Assignor as a result of the allocation
of income and expenses to the "Old Partnership" (as such term is
hereinafter defined) by reason of the prorations hereinafter provided for.
2. PURCHASE AND SALE. Assignor shall sell to Assignee, and
Assignee shall purchase from Assignor, all of Assignor's right, title and
interest in and to the Partnership (the "Assignor Interest"), including,
without limitation, all of Assignor's rights under the Partnership
Agreement, upon and subject to the terms, covenants and conditions
hereinafter set forth.
3. PURCHASE PRICE. The purchase price (the "Purchase
Price") of the Assignor Interest is Fifty Three Million Four Hundred Fifty
Thousand and no/100 Dollars ($53,450,000.00). An amount equal to the
Purchase Price plus the Accrual Amount, and adjusted by the Proration
Amount (the amount to be paid as aforesaid being herein called the "Closing
Payment"), shall be paid on the Closing Date by wire transfer to Assignor
of immediately available federal funds in accordance with wiring
instructions to be provided by Assignor in connection with the closing
hereunder.
4. CLOSING. The closing of the sale and purchase herein
provided shall be consummated on November 17, 1998 (the "Closing Date").
On or before 11:00 a.m. Central time on the Closing Date, (a) Assignee
shall deliver to Assignor (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 Assignor Interest, in the
form of Exhibit "A" attached hereto ("Assignment and Assumption"), and (b)
Assignor shall deliver to Assignee two (2) duly executed and acknowledged
counterpart originals of the Assignment and Assumption, and of certificates
of non-foreign status for State and Federal purposes. The parties will
each deliver such (i) partnership and other filings respecting the
transactions hereunder as each party may reasonably require, and
(ii) opinions of counsel respecting evidence of due organization,
authorization and execution respecting the applicable party, in form
reasonably satisfactory to the other party. On or before the Closing Date,
Assignor shall cause Assignee to be an additional named insured under the
Partnership's insurance policies. 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 intent hereof.
5. PRORATIONS.
A. ITEMS TO BE PRORATED. All rent and other items of
income, as well as all ordinary expenses in connection with the ownership
and operation of the Business Property, shall be prorated on the Closing
Date, computed as of the Closing Date, to allocate such income and expenses
of the Partnership between the Partnership as it was constituted
immediately prior to the sale of the Assignor Interest (the "Old
Partnership") hereunder and the Partnership as it is constituted
immediately following the sale of the Assignor Interest hereunder. Without
limitation on the foregoing, in no event shall expenses to be prorated
hereunder include any tenant improvement or leasing commission costs in
connection with any lease of space at the Property (including any new lease
or any renewal of an existing lease), or any capital expenditures, except
to the extent specifically set forth in the "Closing Statement Example"
attached as Exhibit "B" hereto and made a part hereof. Without limitation
on the foregoing, Assignor shall have no obligation of any kind with
respect to the repair or replacement of the "chiller" unit(s) at the
Property, all costs of which shall be borne by the Partnership as it is
constituted after the closing of the transactions hereunder.
B. CALCULATIONS OF PRORATION AMOUNT AND ACCRUAL
AMOUNT. The Proration Amount determined under subparagraph A above and the
Accrual Amount to be paid hereunder shall initially be determined on the
basis of a written statement or statements prepared and approved by
Assignee and Assignor prior to the Closing Date. Assignee and Assignor
shall determine the manner in which the Proration Amount and the Accrual
Amount are to be calculated in a fair, equitable and reasonable manner.
Assignee and Assignor shall cooperate with each other in good faith in
connection with the determinations and computations required hereunder. An
example of such determinations and computations had the Closing Date
occurred on October 23, 1998 is attached as Exhibit "B" attached hereto and
made a part hereof. Assignee shall cause the Partnership to use diligent
good faith efforts to collect any delinquent rent, operating expense
reimbursements and other items of income which may be attributable to the
period prior to the Closing Date but unpaid as of the date thereof to be
collected as soon as reasonably possible after the Closing Date (and to
promptly remit Assignor's share thereof upon receipt). In the event any
prorations, credits, apportionments or computations made under
subparagraph D above shall prove to be incorrect for any reason, then each
of Assignee and Assignor shall be entitled to an adjustment to correct the
same, provided that any party entitled to such adjustment make written
demand on such other party from whom it is entitled to such adjustment not
later than November 15, 1998 (and all such adjustments shall be finalized
no later than November 30, 1998). Any item which cannot be finally
prorated or determined because of the unavailability of information shall
be tentatively prorated or determined on the basis of the best data then
available and reprorated after the information is available. In connection
therewith, after the Closing Date Assignee shall continue to provide
Assignor full access to all books and records of the Partnership and to all
other financial information as may be reasonably required in connection
with the foregoing determinations. Notwithstanding the foregoing, Assignee
and Assignor hereby agree that, for ease of administration and other
reasons, they will work in good faith to attempt to determine a final
closing amount which will encompass all prorations, credits and other
determinations to be made under this section, such that no post-closing
adjustments for such items will be required.
C. CLOSING COSTS., Each party shall pay its own legal
fees in connection with the transactions under this Agreement. The Old
Partnership shall be responsible for the transfer taxes attributable to the
transactions under this Agreement (and Assignee shall cause the same to be
paid). Except for such transfer taxes, Assignee shall pay any other
closing costs, if any, which may be incurred in connection with the
transactions contemplated in this Agreement, including all documentary,
filing, recording, conveyance, transfer, 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.
D. 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. Assignee will cooperate with Assignor 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 Assignee
shall continue to provide Assignor 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).
6. REPRESENTATIONS AND WARRANTIES.
A. REPRESENTATIONS AND WARRANTIES OF ASSIGNOR.
Assignor hereby represents and warrants to Assignee as follows:
(1) Except as set forth in subparagraphs A(2)
through A(6) below, the sale of the Assignor 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. Assignee
acknowledges that Assignee is an existing partner in the Partnership, and
is also affiliated with Westfield Management Company ("Manager"), the
manager of the Business Property. Assignee acknowledge that, except as to
matters specifically set forth in subparagraphs A(2) through A(6) below,
Assignee will acquire the Assignor Interest solely on the basis of (a) its
own physical and financial examination of the Business Property (Assignee
having completed all such due diligence reviews, examinations and
inspections deemed necessary by Assignee) and (b) information and knowledge
in its possession and in the possession of Manager. As a result of its
existing interest in the Partnership and/or its affiliations with Manager,
as applicable, Assignee is not relying upon, and has no need to rely upon,
any knowledge or information in the possession of Assignor with respect to
any of the foregoing matters except as set forth herein.
(2) Assignor is a limited partnership, duly
organized, validly existing and in good standing under the laws of the
State of Illinois.
(3) Assignor 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.
(4) Assignor has the right, power and authority
to enter into and perform the terms of this Agreement and to consummate the
transactions contemplated hereby. Subject to any consents or approvals
required under the "Existing Loan" as defined in Paragraph 7a below
(Assignee having the obligation to obtain any such consents or approvals),
the execution and delivery of this Agreement and the consummation of the
transactions hereunder do not result in the breach of or default under any
mortgage, deed of trust or other agreement to which Assignor is subject.
(5) This Agreement and all agreements,
instruments and documents herein provided to be executed or to be caused to
be executed by Assignor 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, and binding upon, Assignor.
(6) Assignor owns the Assignor Interest, free and
clear of any and all security interests, rights, options, claims and
demands (other than any security interests and rights granted to Assignee
under the Partnership Agreement) of any person claiming by, through or
under Assignor, but not otherwise.
(7) Assignor has not incurred any debt or entered
into any agreements in the name of the Partnership for which the
Partnership may or would be liable other than such debts or obligations
requested in writing or consented to in writing by Assignee (or its
predecessor in interest) or which are otherwise disclosed in the
Partnership's books.
B. REPRESENTATIONS AND WARRANTIES OF ASSIGNEE.
Assignee hereby represent and warrant to Assignor as follows:
(1) Assignee is a limited liability company, duly
organized, validly existing and in good standing under the laws of the
State of Delaware.
(2) Assignee 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) Assignee has the right, power and authority
to enter into and perform the terms of this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions hereunder do not result
in the breach of or default under any mortgage, deed of trust or other
agreement to which Assignee is subject.
(4) This Agreement and all agreements,
instruments and documents herein provided to be executed or to be caused to
be executed by Assignee 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, and binding upon, Assignee.
(5) The interest of Assignee in the Partnership,
as such interest is described in the Partnership Agreement, is owned by
Assignee free and clear of any and all security interests, rights, options,
claims and demands (other than any security interests, rights and options
granted to Assignor under the Partnership Agreement) of any person claiming
by, through or under Assignee.
7. INDEMNIFICATION.
A. INDEMNIFICATION BY ASSIGNEE AND THE PARTNERSHIP.
As of the Closing Date, Assignee, on behalf of itself and the Partnership
as it is constituted after the closing hereunder, shall hold harmless,
indemnify and defend Assignor from and against all claims, rights, demands,
obligations, liabilities, costs and expenses (including reasonable
attorneys' fees) of any kind or nature related to the Partnership
Agreement, the Partnership, the Business Property and any agreements,
contracts or other matters respecting the same to the extent any of the
foregoing arise from and after the Closing Date or for which Assignee has
received a credit pursuant to Paragraph 5 above (and Assignee, on behalf of
itself and the Partnership as it is constituted after the Closing
hereunder, shall release Assignor from all such matters). Without
limitation on the foregoing, the foregoing indemnification shall include
matters related to or arising from that certain loan (the "Existing Loan")
in the original principal amount of $59,000,000 made by Connecticut General
Life Insurance Company ("Connecticut General") to the Partnership;
provided, however, with respect to matters relating to that certain
Environmental Indemnification Agreement dated January 31, 1992 given in
connection with the Existing Loan, Assignee agrees that, from and after the
date which is one (1) year after the Closing, Assignee's indemnification
obligations shall also include matters arising prior to the Closing
hereunder, except to the extent Assignor otherwise has the same pre-Closing
liability for reasons other than under such Environmental Indemnification
Agreement either at law or to parties other than Connecticut General
pursuant to paragraph 7C below. In addition, Assignee shall hold harmless,
indemnify and defend Assignor from and against any loss or damage to
Assignor resulting from any inaccuracy in or breach of any representation
and warranty of Assignee under this Agreement (or any agreement executed in
connection herewith) or resulting from any breach or default by Assignee
under this Agreement (or any agreement executed in connection herewith).
B. INDEMNIFICATION BY ASSIGNOR. Assignor shall hold
harmless, indemnify and defend Assignee from and against any loss or damage
to Assignee resulting from any inaccuracy in or breach of any
representation and warranty of Assignor under this Agreement (or any
agreement executed in connection herewith) or resulting from any breach or
default by Assignor under this Agreement (or any agreement executed in
connection herewith).
C. NON-WAIVER. Except as specifically set forth in
this Agreement, nothing contained in this Paragraph 7 shall be construed or
operate as a waiver or release of any obligation or liability arising or
accruing under the Partnership Agreement prior to the consummation of the
assignment transactions contemplated hereunder and, except as otherwise set
forth in this Agreement, the parties hereto agree that they shall retain
their respective obligations and liabilities under the Partnership
Agreement accruing prior to such closing.
8. BROKERAGE MATTERS.
A. Except as set forth in subparagraph 8B, Assignor
represents and warrants to Assignee, and Assignee represents and warrants
to Assignor, 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 Assignor shall indemnify and defend Assignee from
the same if it shall be based upon any statement or agreement alleged to
have been made by Assignor, and Assignee shall indemnify and defend
Assignor from the same if it shall be based upon any statement or agreement
alleged to have been made by Assignee. The indemnification obligations
under this Paragraph 8A shall survive the closing of the transactions
hereunder or the earlier termination of this Agreement.
B. Assignor agrees to be responsible for any brokerage
commission which may be payable to Hamptons International ("Broker") in
connection with the transaction under this Agreement pursuant to a separate
written agreement with Broker.
9. 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 ASSIGNEE:
-----------
c/o Westfield Corporation, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
TO ASSIGNOR:
-----------
c/o JMB Realty Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
WITH COPY TO:
------------
Pircher, ▇▇▇▇▇▇▇ & ▇▇▇▇▇
1999 Avenue of the Stars
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Real Estate Notices (GML)
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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).
10. REMEDIES; SURVIVAL.
A. REMEDIES. Without limitation on any other rights
or remedies which may be available in connection with a default or breach
hereunder (all such rights and remedies being retained except as
specifically limited pursuant to the terms of this Agreement), if the
transactions hereunder shall fail to close by reason of Assignee's default,
Assignee shall have no right of first refusal under the Partnership
Agreement thereafter with respect to the sale of Business Property.
B. SURVIVAL. The representations, warranties,
covenants, indemnifications and obligations contained in this Agreement
shall survive the closing of the transactions hereunder.
11. LIMITATION ON LIABILITY. Except for JMB Realty
Corporation, Assignor's general partner, no constituent partner in or
agent of Assignor, 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
Assignor 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 Assignee, the Partnership and its or their successors and
assigns and, without limitation, all other persons and entities, shall look
solely to the assets of Assignor and JMB Realty Corporation as its general
partner for the payment of any claim or for any performance, and Assignee,
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,
neither the negative capital account of any constituent partner in Assignor
or in any other constituent partner of Assignor, nor any obligation of any
constituent partner in Assignor or in any other constituent partner of
Assignor to restore a negative capital account or to contribute capital to
Assignor or to any other constituent partner of Assignor, shall at any time
be deemed to be the property or an asset of Assignor or any such other
constituent partner (and neither Assignee nor the 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 such negative capital account of
partner's obligation to restore or contribute).
12. 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.
IN WITNESS WHEREOF, the parties hereto have executed this
letter agreement as of the day and year first above written.
ASSIGNOR:
JMB INCOME PROPERTIES, LTD.-XII
an Illinois limited partnership
By: JMB REALTY CORPORATION,
a Delaware Corporation
Corporate General Partner
By:______________________________________
Name:____________________________________
Title:_____________________________________
ASSIGNEE:
TOPANGA PLAZA LLC
a Delaware limited liability company
By: WESTFIELD AMERICA LIMITED PARTNERSHIP,
a Delaware limited partnership,
Its Managing Member
By: WESTFIELD AMERICA, INC.,
a Missouri corporation,
Its General Partner
By:_____________________________
Name:__________________________
Title:___________________________
EXHIBIT "A"
ASSIGNMENT AND ASSUMPTION
-------------------------
See Attached
EXHIBIT "B"
CLOSING STATEMENT EXAMPLE
-------------------------