EXHIBIT 10.1
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REDEMPTION AGREEMENT
REDEMPTION AGREEMENT made as of December 31, 2002 (this "Agreement")
by and between JMB 000 Xxxx Xxxxxx Xxxxxxx Company, LLC ("JMB Partner"),
WFP Property G.P. Corp. and Brookfield Financial Properties, L.P. (the
"Partnership").
W I T N E S S E T H :
WHEREAS, the partners of the Partnership are parties to the Fourth
Amended and Restated Partnership Agreement dated as of the date hereof (the
"Fourth Restated Partnership Agreement"; terms used herein but not defined
herein have the meanings assigned to such terms in the Fourth Restated
Partnership Agreement);
WHEREAS, as of the date hereof, JMB Partner owns 5,673.751 Class A
Units of the Partnership (the "Owned Units"); and
WHEREAS, the Partnership desires to redeem from JMB Partner, and
JMB Partner desires to have the Partnership redeem, 5,106.376 of the Owned
Units (the "Redeemed Units") upon the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto, each intending to be
legally bound, hereby agree as follows:
1. REDEMPTION.
JMB Partner hereby Transfers to the Partnership, and the
Partnership hereby redeems from JMB Partner, the Redeemed Units for
consideration of the payment of the Redemption Price (as defined below) by
the Partnership to the JMB Partner. Simultaneously with the execution and
delivery of this Agreement and the payment of the Redemption Price by the
Partnership to JMB Partner, JMB Partner shall deliver to the Partnership an
affidavit setting forth that JMB Partner is the holder of the Owned Units
and that JMB Partner is unable to locate the certificate representing its
interest in the Partnership. Within 10 days of the date hereof, the
Partnership shall issue to JMB Partner a new certificate representing JMB
Partner's remaining interest of 567.375 Class A Units of the Partnership
(the "Retained Units").
2. REDEMPTION PRICE AND PAYMENT.
The redemption price for the Redeemed Units shall be
$56,108,857.50 (the "Redemption Price"), which amount shall be payable by
wire transfer of immediately available funds by the Partnership as set
forth below upon delivery of the affidavit set forth in Section 1 above.
JMB Partner agrees that the Redemption Price represents full consideration
for the Redeemed Units and that it is entitled to no other consideration
therefor. The Redemption Price paid by the Partnership to JMB Partner
shall be allocated by JMB Partner as follows: (a) $55,547,768.93, an amount
equal to ninety-nine percent (99%) of the Redemption Price, to XXX/000 Xxxx
Xxxxxx Associates, Ltd. and (b) $561,088.57, an amount equal to one percent
(1%) of the Redemption Price, to WFP Property G.P. Corp. On the date
hereof, a wire transfer in the amount equal to the Redemption Price shall
be paid to XXX/000 Xxxx Xxxxxx Associates, Ltd. to the following account:
Bank of America NT&SA, ABA No. 000000000,
yDDA No. 73666-01049.
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3. REPRESENTATIONS AND WARRANTIES OF JMB PARTNER.
JMB Partner hereby represents and warrants to the Partnership
that:
(a) it owns 5,673.751 Class A Units of the Partnership;
(b) the Redeemed Units are owned by JMB Partner free and
clear of all restrictions, claims, liens, charges, encumbrances and rights
of others;
(c) there are no outstanding warrants, options, pledges,
calls, commitments or agreements to which JMB Partner is a party or by
which JMB Partner may be bound which relate to or affect the Redeemed
Units;
(d) it has full right, power and authority to Transfer to the
Partnership, in accordance with the terms of this Agreement, good, valid
and marketable title, beneficially and of record, to all the Redeemed Units
free and clear of all restrictions, claims, liens, charges, encumbrances
and rights of others, and that no consent or approval of any third party
(including, without limitation, any governmental or quasi-governmental
agency) is required therefor; and
(e) neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will conflict with
or result in a material breach of or default under any agreement to which
JMB Partner is a party or by which JMB Partner or the Redeemed Units may be
bound.
4. REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP.
The Partnership hereby represents and warrants to JMB Partner that:
(a) it has full right, power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby, no
consent or approval of any third party (including, without limitation, any
governmental or quasi-governmental agency) is required therefor, and that
neither the execution and delivery of this Agreement nor the consummation
of the transactions contemplated hereby will conflict with or result in a
material breach of or default under the Certificate of Limited Partnership
of the Partnership or the Fourth Amended Partnership Agreement or any
agreement to which the Partnership is a party or by which it is bound; and
(b) the books and records of the Partnership provide that JMB
Partner is the record holder of 5,673.751 Class A Units.
5. SURVIVAL OF REPRESENTATION AND WARRANTIES.
The respective representations, warranties and agreements of the
parties to this Agreement shall survive the date of this Agreement. Each
party shall be deemed to have relied upon each and every representation and
warranty of the other party, regardless of any investigation heretofore or
hereafter made by or on behalf of such party.
6. TERMINATION OF REGISTRATION RIGHTS AGREEMENT.
Each of the parties agrees to enter into the agreement in the form of
Exhibit A hereto relating to the termination of the Registration Rights
Agreement dated as of November 15, 1996 to which each is a party, which
shall become effective upon the redemption of the Redeemed Units as
provided herein.
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7. TERMINATION OF JMB TRANSACTION AGREEMENT.
Each of the parties agrees to enter into the agreement in the form of
Exhibit B hereto relating to the termination of the JMB Transaction
Agreement dated as of November 21, 1996 to which each is a party, which
shall become effective upon the redemption of the Redeemed Units as
provided herein.
8. AMENDMENT AND RESTATEMENT OF LIMITED PARTNERSHIP AGREEMENT.
Concurrently with the redemption of the Redeemed Units hereunder,
each of the parties hereto agrees to enter into the Fourth Restated
Partnership Agreement, which shall become effective upon the redemption of
the Redeemed Units as provided herein.
9. REPORTING.
The Partnership agrees to report the redemption of the Redeemed Units
and the payment of the Redemption Price by the Partnership to JMB Partner
as a distribution by the Partnership to JMB Partner and not as a sale for
all tax purposes.
10. RELEASE BY JMB PARTNER.
(a) For and in consideration of the covenants and promises
set forth in this Agreement and subject to the redemption by the
Partnership of the Redeemed Units contemplated by Section 2 hereof and the
payment of the Redemption Price, JMB Partner, on behalf of itself and its
assigns, representatives, agents, subsidiaries, Affiliates, officers,
directors, employees and members (collectively, the "JMB Parties") hereby
fully and finally releases, acquits and forever discharge the Partnership,
the Managing General Partner, and each of their respective predecessors,
successors and past or present Affiliates, officers, directors, partners,
members, stockholders and employees (the "Released Parties"), from any and
all actions, claims, liabilities, damages and other costs and expenses
which any JMB Party may have arising out of or related to the transactions
contemplated by this Agreement (including, without limitation, those
related to any taxes); provided that the release set forth in this
Section 10 shall not apply to any of the representations and warranties of
the Partnership set forth in Section 4 or any agreement by the Partnership
set forth in Section 5 or the obligation of the Partnership to pay the
Redemption Price to JMB Partner upon the redemption of the Redeemed Units
or the reporting obligation of the Partnership under Section 9 hereof.
(b) JMB Partner hereby represents and warrants that it has
adequate information regarding the terms of this Agreement, the scope and
effect of the releases set forth herein, and all other matters encompassed
by this Agreement to make an informed and knowledgeable decision with
regard to entering into this Agreement, and that it has consulted with
counsel and independently and without reliance upon the Released Parties
made its own analysis and decision to enter into this Agreement.
11. NOTICES.
All notices and communications under this Agreement may be given
personally or by sending the same by certified or registered Mail, return
receipt requested, to the other party at its address as noted in the books
of the Partnership. Either party may designate another address for notices
hereunder by giving the other party notice thereof pursuant hereto.
12. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAW.
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13. BINDING EFFECT.
The provisions of this Agreement shall be binding upon and inure to
the benefit of each of the parties and their respective heirs, personal
representatives, successors and assigns.
14. ENTIRE AGREEMENT; MODIFICATIONS; WAIVER.
This Agreement represents the entire understanding of the parties
with respect to the subject matter hereof and there are no terms,
conditions, representations or warranties, expressed or implied, except as
set forth herein. No modification or amendment hereof or addition hereto
will be binding, unless in writing executed by the parties affected
thereby. No waiver of any right hereunder shall be effective unless in a
writing signed by the party charged with such waiver.
15. CAPTIONS.
The captions contained in this Agreement are for reference purposes
only and shall not affect the interpretation or meaning of this Agreement.
16. NECESSARY ACTS.
Each of the parties hereto agrees to do any act or thing and to
execute any and all instruments necessary, proper and/or appropriate to
make effective or more fully carry out or implement the intent and purposes
of the provisions of this Agreement.
17. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
18. EXPENSES.
Each party hereto shall bear its own expenses in connection with the
negotiation of this Agreement and the consummation of the transactions
contemplated hereby.
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IN WITNESS WHEREOF, this Agreement has been signed as of the date
first written above.
JMB 000 XXXX XXXXXX XXXXXXX COMPANY, LLC
By: XXX/000 XXXX XXXXXX ASSOCIATES, LTD.,
its managing member
By: JMB PARK AVENUE, INC.,
a general partner
By:
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Name:
Title:
BROOKFIELD FINANCIAL PROPERTIES, L.P.
By: BROOKFIELD FINANCIAL PROPERTIES,
INC., a general partner
By:
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Name:
Title:
WFP PROPERTY G.P. CORP.
By:
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Name:
Title:
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