JMB MORTAGE PARTNERS, LTD. - II
EXHIBIT 10-B
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AGREEMENT OF PARTNERSHIP OF
JMB\SPRING HILL ASSOCIATES
This Agreement is made and entered into effective as of the 19th day
of December, 1994 by and among JMB MORTGAGE PARTNERS, LTD., an Illinois
limited partnership, JMB MORTGAGE PARTNERS, LTD.-II, an Illinois limited
partnership, and JMB MORTGAGE PARTNERS, LTD.-III, an Illinois limited
partnership (herein the "General Partners", sometimes herein referred to as
the "Partners").
R E C I T A L S:
WHEREAS, the parties hereto desire to form a general partnership
pursuant to the Uniform Partnership Act, as amended, as in effect in the
State of Illinois, except as hereinafter provided, upon the terms and
conditions as set froth herein.
NOW THEREFORE, for and in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto, with the intention of being
legally bound, do hereby agree as follows:
SECTION 1. FORMATION; NAME; TERM; OFFICE; PURPOSE.
1.1 FORMATION. The parties hereby enter into and form, or ratify
the formation of, a general partnership (the "Partnership") in accordance
with the provisions of the Uniform Partnership Act as from time to time
amended and in effect in Illinois (the "Act"). Except as provided in this
Agreement, the rights and liabilities of the Partners shall be as provided
in the Act.
1.2 NAME. The name of the Partnership shall be "JMB/Spring Hill
Associates" and such name shall be used at all times in connection with its
business and affairs.
1.3 TERM. Partnership shall begin as of the date hereinabove
mentioned and, subject to earlier termination as herein provided, shall
continue until the earlier to occur of the last day of December, 2044 or
the first date on which the Partners determines that (i) all assets and
property of the Partnership have been reduced to cash or cash equivalents;
(ii) all liabilities and obligations of the Partnership have been paid and
satisfied in full; and (iii) the purposes of the Partnership have been
completed.
1.4 OFFICE. The books and records of the Partnership shall be
maintained at 000 Xxxxx Xxxxxxxx, Xxxxxxx, Xxxxxxxx 00000. The Partners
may change the office of the Partnership and shall promptly thereafter
notify each of the Partners of such change.
1.5 PURPOSE. The purpose of the Partnership shall be to acquire,
hold, develop and otherwise use for profit, certain real property located
in West Dundee, Illinois, together with improvements thereon and certain
tangible and intangible personal property used in connection therewith,
commonly known as "Spring Hill Fashion Center" and to
engage in any and all activities related or incidental thereto. Whenever
the term "Property" appears in this Agreement, such term shall mean any
property, real or personal, tangible or intangible, at any time owned by
the Partnership.
SECTION 2. PARTNERS; CAPITAL.
2.1 PARTNERS. The names and addresses of the Partners are set
forth in EXHIBIT A hereto. If additional individuals or entities are to be
admitted to the Partnership as Partners as permitted under this Agreement,
EXHIBIT A hereto shall be appropriately amended by such persons and the
Partners to reflect the names and addresses of each other Partner.
2.2 CAPITAL CONTRIBUTIONS. The Partners have contributed or have
agreed to contribute the sums set forth in EXHIBIT A attached hereto and
made a part hereof. The Partners may make such additional contributions as
may be agreed to from time to time by the Partners, provided that any such
additional capital shall be contributed to the Partnership by the Partners
pro-rata in the proportion of their "Partnership Shares" (as hereinafter
defined). In the event that any Partner makes an additional capital
contribution to the Partnership or receives a return of all or part of its
contributions to the Partnership, such fact shall promptly be recorded in
the books and records of the Partnership, and EXHIBIT A shall be promptly
amended to reflect the same.
2.3 WITHDRAWALS OF CAPITAL. Except as otherwise herein provided,
no Partner shall be entitled to withdraw capital or to receive
distributions of or against capital without the prior written consent of,
and upon the terms and conditions specified by, the other Partners.
2.4 CAPITAL ACCOUNTS. The Partnership shall maintain for each of
the Partners a capital account, which shall be the aggregate amount of the
contributions to the Partnership made by such Partner, reduced by the
aggregate amount of any losses allocated, and any distributions of cash or
the fair market value or other assets of the Partnership made, to such
Partner and increased by the aggregate amount of any net profits allocated
to such Partner.
2.5 LOANS. All advances or payments to the Partnership by any
Partner, other than the contributions required or made under Section 2.1
hereof, shall be deemed to be loans by such Partner to the Partnership, and
the Partner making such loan shall be entitled to interest thereon at such
rates per annum as the Partners may agree, and such loan together with
interest as aforesaid, shall be repaid before any distribution shall be
made hereunder to the other Partners. No such loan to the Partnership
shall be made without the prior written consent of the Partners and shall
be required to be made by all Partners in proportion to their respective
Partnership Shares (as hereinafter defined). With respect to any
borrowings by the Partnership for which there is recourse to the Partners
or any of their respective assets, the Partners shall be liable for such
borrowing in proportion to their respective Partnership Shares (as
hereinafter defined) as determined from time to time.
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SECTION 3. PARTNERSHIP SHARES.
3.1 DEFINITIONS; ALLOCATIONS FOR TAX PURPOSES. As used herein,
"profits" shall include, without limitation, each item of Partnership
income and gain, and "losses" shall include, without limitation, each item
of loss, and deductions as determined for Federal income tax purposes, and
"Partnership Share" shall be as set forth on EXHIBIT A attached hereto.
All profits or losses from the operations of the Partnership (including the
sale or refinancing of the Property) for a fiscal year or part thereof
shall be allocated to the Partners based upon their respective Partnership
Shares.
3.2 CASH DISTRIBUTIONS.
(a) All profits or losses from the sale or other disposition of all
or any substantial portion of the Property shall be allocated to the
Partners in accordance with the respective Partnership Shares on the date
on which the Partnership recognized such profits or losses for Federal
income tax purposes. Notwithstanding anything to the contrary in this
Agreement, upon the ultimate liquidation of the Partnership, if any Partner
has a deficit balance in his capital account (after giving effect to the
allocation set forth in this agreement, including without limitation, the
allocations set forth in this Section 3.2 (a), then any such Partner will
make a capital contribution to the Partnership in an amount equal to such
deficit balance, any such capital contribution shall be distributed as
proceeds from the liquidation of the Partnership to the other Partner with
a positive balance in his capital account to the extent of such positive
balance. Notwithstanding any adjustment of the allocations of profits or
losses provided in this Agreement by any judicial body or governmental
agency (or any amendment hereto as a result of a change or proposed change
in any law or regulation or any interpretation thereof), the allocation of
profits or losses provided in this Agreement shall control for purposes of
the determination of the Partners' capital accounts for all purposes of
this Agreement.
(b) Each distribution to the Partners of cash or other assets of the
Partnership made prior to the dissolution of the Partnership made prior to
the dissolution of the Partnership, including, but not limited to, each
distribution of net cash flow from the operations of the Partnership and
net proceeds received by the Partnership from the sale or refinancing of
all or any substantial portion of the Property, shall be made to the
Partners in accordance with their respective Partnership Shares owned on
the date of such distribution. Each distribution of cash or other assets
of the Partnership made after dissolution of the Partnership shall be made
in accordance with Section 7.3 hereof. Distributions of the Partners will
be made in such amount and at such times as shall be determined by all of
the Partners, or in the event of the dissolution and liquidation of the
Partnership, by the Winding-Up-Party (as hereinafter defined).
SECTION 4. MANAGEMENT OF THE PARTNERSHIP. The ultimate
responsibility for the affairs of the Partnership shall be vested in the
Partners.
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SECTION 5. PARTNERSHIP BOOKS AND RECORDS; FISCAL YEAR. The Partners
shall keep and maintain the books and records of the Partnership at the
principal place of business of the Partnership. The fiscal year of the
Partnership shall end on the 31st day of December in each year. The books
of the Partnership shall be kept on the cash or accrual basis, and the
Partnership shall be on the cash or accrual basis for tax purposes, as
determined by the Partners. The books and records of the Partnership shall
be audited at such times and by such accountants as shall be determined
from time to time by the Partners. The funds of the Partnership shall be
deposited in such bank accounts or invested in such interest bearing or
non-interest-bearing investments, as shall be determined by the Partners.
SECTION 6. TRANSFER OF PARTNERSHIP INTERESTS.
6.1 WRITTEN CONSENT REQUIRED. No Partner may sell, assign,
transfer, encumber or hypothecate the whole or any part of its Partnership
interest (including, but not limited to, its interest in the capital or
profits of the Partnership) without the written consent of the other
Partners.
6.2 SUBSTITUTED PARTNERS. Any party or person admitted to the
Partnership as a substituted Partner shall be subject to and bound by all
of the provisions of this Agreement as if originally a party to this
Agreement. Any party or person admitted to the Partnership as a
substituted Partner shall have all of the rights as a partner in the
Partnership conferred upon a general partner pursuant to the Act. The
admittance of a party or person to the Partnership as a substituted Partner
and the withdrawal of a party or person as a partner in the Partnership
shall continue to exist with the then remaining parties or persons of
Partners as if all the then existing Partners were originally all of the
Partners in the Partnership.
6.3 LIABILITY OF PARTNERS. A Partner shall have no liability
hereunder (including, but not limited to, any liability as a surety but
excluding liability for the repayment or any outstanding principal and
interest on loans made by the Partnership to such Partner) for any
obligations accruing under or in connection with the Partnership and
relating to events occurring after such Partner shall have sold, assigned
or transferred its entire Partnership interest.
SECTION 7 DISSOLUTION AND CONTINUATION OR TERMINATION OF THE
PARTNERSHIP.
7.1 DISSOLUTION OF PARTNERSHIP. No act, thing, occurrence, event
or circumstance shall cause or result in the dissolution of the
Partnership, except the matters specified in Section 7.2 below.
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7.2 DISSOLUTION EVENTS AND CONTINUATION OR TERMINATION OF THE
PARTNERSHIP. The happening of any one of the following events shall work a
dissolution of the Partnership.
(i) The bankruptcy, legal incapacity, dissolution, termination, termination
or expulsion of any then existing Partner; provided, however, that in such
event the remaining Partners shall have the right to elect to continue the
Partnership's business by depositing at the office of the Partnership a
writing evidencing such election;
(ii) The reduction to cash or cash equivalents of all of the assets of the
Partnership
(iii) The unanimous agreement in writing by all of the Partners of the
Partnership; or
(iv) The termination of the term of the Partnership pursuant to section
1.3 hereof. Without limitation on the other provisions hereof, the
admission of a new Partner shall not work a dissolution of the Partnership.
Except as otherwise provided in this Agreement, each Partner agrees that,
without the consent of the other Partners, a Partner may not withdraw from
or cause a voluntary dissolution of the Partnership.
7.3 WINDING UP PARTNERSHIP AFFAIRS. Upon the occurrence of any of
the events specified in Section 7.2 causing a dissolution of the
Partnership and except as otherwise provided in Section 7.2, the remaining
Partner or Partners shall commence to wind up the affairs of the
Partnership and to liquidate its investments (and in this connection shall
have full right and unlimited discretion to determine in good faith the
time, manner and terms of any sale or sales of Partnership Property). The
Partner or Partners obligated to wind up the affairs of the Partnership as
aforesaid are herein called the "Winding-Up Party". The Partners and their
legal representatives, successors and assignees shall continue to share
profits and losses during the period of liquidation in the same manner and
proportion as immediately before the dissolution. Following the payment of
all debts and liabilities of the Partnership and all expenses of
liquidation and subject to the right of the Winding-Up Party to set up such
cash reserves as, and for so long as, it may deem reasonable necessary, the
proceeds of the liquidation and any other funds and assets of the
Partnership shall be distributed to the Partners (after deducting from the
distributive share of a Partner any sum such Partner owes the Partnership)
in accordance with Capital Account balances and Partnership Shares as
provided in Section 3.2 (b) hereof. No Partner shall have any right to
demand or receive property other than cash upon dissolution or termination
of the Partnership. Upon the completion of the liquidation of the
Partnership and of the distribution of all Partnership assets, the
Partnership shall terminate and the Winding-Up Party shall have the
authority to execute any and all documents required in its judgement to
effectuate the dissolution and termination of the Partnership. Each
Partner shall look solely to the assets of the Partnership for all
distributions with respect to the Partnership and its capital contribution
thereto and share of the profits or losses therefrom, and shall have no
recourse therefor against any Partner; provided that nothing herein
contained shall relieve any Partner of such Partner's obligation to pay any
liability or indebtedness owing the Partnership by such Partner.
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SECTION 8 NOTICES; AMENDMENT.
8.1 NOTICES. Any notice which a Partner is required or may desire
to give any other Partner shall be in writing, and may be given by
personally delivered or by mailing the same by United States registered or
certified mail, return receipt requested, to the Partner to whom such
notice is directed at the address of each Partner as set forth on EXHIBIT A
hereto, subject to the right of a Partner to designate a different address
for itself by notice similarly given. Any notice so given by United States
mail shall be deemed to have been given on the second day after it is
deposited in the United States mail as registered or certified mail,
addressed as above provided, with postage thereon fully prepaid. Any such
notice not given by registered or certified mail as aforesaid shall be
deemed to be given upon receipt by the party to whom it is to be given.
8.2 AMENDMENT. This Agreement may be amended by written agreement
of amendment executed by all the Partners, but no otherwise.
SECTION 9 MISCELLANEOUS. Each Partner hereby irrevocably waives
any and all rights that it may have to maintain any action for partition of
any of the Partnership Property. This Agreement constitutes the entire
agreement between the parties. This Agreement supersedes any prior
agreement or understanding between the parties. This Agreement and the
rights of the parties hereunder shall be governed by and interpreted in
accordance with the laws of the State of Illinois. Except as herein
otherwise specifically provided, this Agreement shall be binding upon and
inure to the benefit of the parties and their legal representatives,
successors and assignees. Captions contained in the Agreement in no way
define, limit or extend the scope or intent of this Agreement. If any
provisions of this Agreement, or the application of such provision to any
person or circumstance, shall be held invalid, the remainder of this
Agreement, or application of such provision to other persons or
circumstances, shall not be affected thereby. This Agreement may be
executed in several counterparts, each of which shall be deemed an original
but all of which shall constitute one and the same instrument. The opinion
of the independent certified public accountants retained by the Partnership
from time to time shall be final and binding with respect to all
computations and determination required to be made under Section 3 hereof
(including computations and determinations in connection with any
distribution following or in connection with the dissolution of the
Partnership). If the Partnership or any Partner obtains a judgement
against any other party by reason of breach of this Agreement or failure to
comply with the provisions hereof, a reasonable attorney's fee as fixed by
the court shall be included in such judgement. Any Partner shall be
entitled to maintain, on its own behalf of the Partnership, any action or
proceeding against any other Partner or the Partnership (including, without
limitation, any action for damages, specific performance or declaratory
relief) for or by reason of breach by such party of this Agreement,
notwithstanding the fact that any or all of the parties to such proceeding
may then be a partner in the Partnership, and without dissolving the
Partnership as a partnership. No remedy conferred upon the Partnership or
any Partner in this Agreement is intended to be exclusive or any other
remedy herein
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or by law provided or permitted, but each shall be cumulative and shall be
in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute (subject, however, to the
limitations expressly herein set forth). No waiver by a Partner or the
Partnership of any breach of this Agreement shall be deemed to be a waiver
of any other breach of any kind or nature and no acceptance of payment or
performance by a Partner or the Partnership after any such breach shall be
deemed to be a waiver of any breach of this Agreement whether or not such
Partner or the Partnership knows of such breach at the time it accepts such
payment or performance. No failure or delay on the part of a Partner or
the Partnership to exercise any right it may have shall prevent the
exercise thereof by such Partner or the Partnership at any time such other
Partner may continue to be in default hereunder, and no such failure or
delay shall operate as a waiver of any breach or default.
IN WITNESS WHEREOF, the undersigned have executed this Agreement of
Partnership of JMB/Spring Hill Associates as of the day and year first
above written.
JMB MORTGAGE PARTNERS, LTD., an
Illinois limited partnership
By: JMB Realty Corporation, a
Delaware corporation
Corporate General Partner
By: XXXXX XXXXXX
Its: Vice President
JMB MORTGAGE PARTNERS, LTD.II, an
Illinois limited partnership
By: JMB Realty Corporation, a
Delaware corporation
Corporate General Partner
By: XXXXX XXXXXX
Its: Vice President
JMB MORTGAGE PARTNERS, LTD.-III, an
Illinois limited partnership
By: JMB Realty Corporation, a
Delaware corporation
Corporate General Partner
By: XXXXX XXXXXX
Its: Vice President
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EXHIBIT A
PARTNERSHIP
PARTNER SHARES
JMB Mortgage Partners, Ltd. 60.45%
000 Xxxxx Xxxxxxxx Xxx.
Xxxxxxx, XX 00000
JMB Mortgage Partners, Ltd.-II 7.00%
000 Xxxxx Xxxxxxxx Xxx.
Xxxxxxx, XX 00000
JMB Mortgage Partners, Ltd.-III 32.55%
000 Xxxxx Xxxxxxxx Xxx.
Xxxxxxx, XX 00000
Total ---------------
100.00%
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