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EXHIBIT 10.nnn
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER (the "AGREEMENT"), dated as of January 23, 1997,
is made between Xxxxxx Place Associates, an Illinois general partnership (the
"PARTNERSHIP"), and Xxxxxx Place Associates, LLC, a Delaware limited liability
company (the "COMPANY") (each of which is hereinafter sometimes referred to
individually as a "CONSTITUENT ENTITY", and both of which are hereinafter
sometimes referred to collectively as the "CONSTITUENT ENTITIES").
WITNESSETH:
WHEREAS, the Partnership is a general partnership, duly formed under the
laws of the State of Illinois, whose partners are Carlyle Real Estate Limited
Partnership-XIII, an Illinois limited partnership, Urban Investment and
Development Co., an Illinois general partnership, and JMB Realty Corporation, a
Delaware corporation; and
WHEREAS, the Company is a limited liability company, duly formed under the
laws of the State of Delaware, whose members are Carlyle Real Estate Limited
Partnership-XIII, an Illinois limited partnership, Urban Investment and
Development Co., an Illinois general partnership, and JMB Realty Corporation, a
Delaware corporation; and
WHEREAS, the Company desires, among other things, to acquire all assets,
subject to any liabilities, of the Partnership through the merger of the
Partnership into the Company; and
WHEREAS, the Constituent Entities deem it advisable and in their
respective best interests that the Partnership be merged into the Company on the
terms set forth herein (the "MERGER") and that the Company be the surviving
Constituent Entity (hereinafter sometimes referred to as the "SURVIVING
ENTITY"); and
WHEREAS, all of the partners of the Partnership and all of the members of
the Company have duly approved this Agreement and the Merger; and
WHEREAS, all other conditions precedent to the Merger and the consummation
of the transactions contemplated by this Agreement have been fulfilled in all
material respects or have been waived.
NOW, THEREFORE, the Constituent Entities hereby agree as follows:
1. Merger.
(a) Upon the date of the execution and delivery of this Agreement by
the Constituent Entities, a certificate of merger complying with the provisions
of 6 Del.C. Section 18-209 shall be prepared, executed and filed in the Office
of the
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Secretary of State of the State of Delaware (the "Secretary of State") for the
purpose of effecting the Merger. The Merger shall be effective at the time (the
"EFFECTIVE TIME") of filing of such certificate, JMB Realty Corporation hereby
is authorized to prepare, execute and file such certificate of merger, and for
purposes of executing such certificate JMB Realty Corporation is and shall be
deemed to be an "authorized person' (as such term is used in the Delaware
Limited Liability Company Act, 6 Del.C. Section 18-101, et seq.).
(b) At the Effective Time, the Partnership shall be merged with and
into the Company, and the separate existence of the Partnership shall cease, and
the effect of the Merger shall be as provided in 6 Del.C. Section 18-209. The
Company shall be the Surviving Entity in the Merger and shall continue its
separate existence as a limited liability company under the laws of the State of
Delaware.
(c) At the Effective Time, the partnership interest in the
Partnership of each partner, and all rights in respect of such partnership
interest, shall be converted into a membership interest in the Company, and each
such partner of the Partnership shall receive a membership interest in the
Company which corresponds with such partner's interest in the Partnership
immediately before the Effective Date.
2. Miscellaneous.
(a) The name of the Surviving Entity shall be Xxxxxx Place
Associates, LLC.
(b) The limited liability company agreement of the Company in effect
on the date of this Agreement, shall, from the Effective Time, constitute the
limited liability company agreement of the Surviving Entity, unless and until
amended as provided by such agreement, by subsequent agreement of the members of
the Company or the laws of the State of Delaware.
(c) All prior and contemporaneous agreements, contracts, promises,
representations and statements, if any, among the parties hereto, or their
representatives, regarding the Merger are merged into this Agreement, and this
Agreement shall constitute the entire understanding among the parties regarding
the Merger and no subsequent waiver or modification of the terms hereof shall be
valid unless in writing signed by the party to be charged and then only to the
extent therein set forth.
(d) This Agreement shall be binding upon and inure to the benefit of
the parties hereto, their representatives, successors and assigns. The captions
appearing in this Agreement are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope or intent of this
Agreement or any of the provisions hereof,
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(e) This Agreement may be executed in any number of counterparts,
each of which, when executed, shall be deemed an original, and all such
counterparts together shall constitute one and the same instrument.
(f) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware (without regard to any conflict of laws
rules thereof).
IN WITNESS WHEREOF, the Constituent Entities have caused this Agreement of
Merger to be executed by all of their partners or the managing member, as the
case may be, as of the date above written.
XXXXXX PLACE ASSOCIATES,
an Illinois general partnership
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP - XIII,
an Illinois limited partnership
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation
Its General Partner
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: Executive Vice President
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By: URBAN INVESTMENT AND
DEVELOPMENT CO.,
an Illinois general partnership
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation
Its General Partner
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Senior Vice President
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By: JMB REALTY CORPORATION,
a Delaware corporation
Its General Partner
By: /s/ H. Xxxxx Xxxxxx
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Name: H. Xxxxx Xxxxxx
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Title: Executive Vice President
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XXXXXX XXXXX ASSOCIATES, LLC,
a Delaware limited liability compnay
By: JMB REALTY CORPORATION,
a Delaware corporation
Its Managing Member
By: /s/ H. Xxxxx Xxxxxx
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Name: H. Xxxxx Xxxxxx
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Title: Executive Vice President
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