EXHIBIT 10-B
------------
(MP-III)
AGREEMENT OF PARTNERSHIP OF
NORTH RIVERS MARKET ASSOCIATES
This Agreement is made and entered into as of April 26, 1993, by and
between JMB MORTGAGE PARTNERS, LTD.-III, an Illinois limited partnership
and JMB MORTGAGE PARTNERS, LTD.-IV, an Illinois limited partnership (herein
the "General Partners", sometimes herein referred to as the "Partners").
WITNESSETH, THAT WHEREAS:
------------------------
THAT WHEREAS, the parties hereto desire to form a general partnership
pursuant to the provisions of the Uniform Partnership Act as in effect in
the State of Illinois, as amended (herein the "Act"), except as otherwise
provided herein, upon the terms and conditions as set forth 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:
1. NAME OF THE PARTNERSHIP. The name of the Partnership hereby formed
is "North Rivers Market Associates."
2. CHARACTER OF THE BUSINESS. The character of the business of the
Partnership shall be to own and operate the North Rivers Market Shopping
Center in North Charleston, South Carolina 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 or
their respective successors.
3. LOCATION OF THE PRINCIPAL PLACE OF BUSINESS. The location of the
principal place of business of the Partnership is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other location as
shall be designated by the Partners.
4. NAMES AND PLACES OF RESIDENCE OF PARTNERSHIP. The address of each
of the Partners is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, or such other location as may be agreed upon by the Partners. As
used herein, "Partnership" means the general partnership formed pursuant to
the Partnership Agreement as such general partnership may be constituted
from time to time, and "Partner" shall mean JMB Mortgage Partners, Ltd.-III
and JMB Mortgage Partners, Ltd.-IV and their respective successors and
assigns as a partner of the Partnership.
5. TERM OF THE PARTNERSHIP. The term for which the Partnership shall
exist shall continue until December 31, 2043, unless sooner terminated as
hereinafter provided.
6. CONTRIBUTIONS OF THE MEMBERS OF THE PARTNERSHIP.
A. CONTRIBUTION. 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 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 and
appropriately amended to reflect the same.
B. 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.
C. 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.
D. LOANS. All advances or payments to the Partnership by any
Partner, other than the contributions required or made under Section 6.A
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 Partner. 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.
7. PARTNERSHIP SHARES.
A. 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.
B. 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
2
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
7.B) 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 allocation 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.
C. Each distribution to the Partners of cash or other assets 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
11.C hereof. Distributions of the Partnership 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).
8. MANAGEMENT OF THE PARTNERS. The ultimate responsibility for the
affairs of the Partnership shall be vested equally in both of the Partners.
9. BOOKS AND RECORDS OF THE PARTNERSHIP; 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.
10. TRANSFER OF PARTNERSHIP INTERESTS.
A. 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.
3
B. 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 as Partners as if all the then existing
Partners were originally all of the Partners in the Partnership.
C. A Partner shall have no liability hereunder (including, but not
limited to, any liability as a surety but excluding liability for the
repayment of 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.
11. DISSOLUTION OF THE PARTNERSHIP.
A. No act, thing, occurrence, event or circumstance shall cause or
result in the dissolution of the Partnership, except the matters specified
in subsection B below.
B. The happening of any one of the following events shall work a
dissolution of the Partnership:
(1) The bankruptcy, legal incapacity, dissolution, termination
or expulsion of any then existing Partner; provided, however, that in such
event the remaining Partner 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. No other act shall be required to effect
such continuation;
(2) The reduction to cash or cash equivalents of all of the
assets of the Partnership;
(3) The unanimous agreement in writing by all of the Partners
of the Partnership;
(4) The termination of the term of the Partnership pursuant
to Section 5 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 Partner, a Partner may not
withdraw from or cause a voluntary dissolution of the Partnership.
C. Upon the occurrence of any of the events specified in subsection
B above causing a dissolution of the Partnership and except as otherwise
provided in subsection B above, 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
4
determine in good faith the time, manner and terms of any sale of 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 reasonably 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 7.C 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 judgment 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 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.
12. NOTICES; AMENDMENT.
A. Any notice which a Partner is required or may desire to give any
other Partner shall be in writing, and may be given personal delivery or by
mailing same by United States registered or certified mail, return receipt
requested, to the Partner to whom such notice is directed at the address of
such Partner as hereinabove set forth, 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 of
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.
B. This Agreement may be amended by written agreement of amendment
executed by all the Partners, but not otherwise.
13. 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
5
assignees. Captions contained in the Agreement in no way define, limit or
extend the scope or intent of this Agreement. If any provision 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 determinations required to be made under Section 7 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 judgment against any other party
by reason of breach of this Agreement or failure to comply with the
provisions hereof, a reasonable attorneys' fee as fixed by the court shall
be included in such judgment. Any Partner shall be entitled to maintain,
on its own behalf or on 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 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.
6
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
JMB MORTGAGE PARTNERS, LTD.-III
By: JMB Realty Corporation
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
President
JMB MORTGAGE PARTNERS, LTD.-IV
By: JMB Mortgage Managers-IV, Inc.
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
President
7
EXHIBIT "A"
-----------
PARTNER CAPITAL CONTRIBUTIONS
------- ----------------------
JMB MORTGAGE PARTNERS, LTD.-III $ 664.90
JMB MORTGAGE PARTNERSHIP, LTD.-IV 335.10
---------
$1,000.00
==========
