EXHIBIT 10.1
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PURCHASE AGREEMENT
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(▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇; ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇)
THIS AGREEMENT is made and entered into as of the 22nd day of June,
1999, by and among NORTH HILLS MALL ASSOCIATES, an Illinois general
partnership ("Seller"), NORTH HILLS, LTD., a Texas limited partnership
("NHL"), and THE KEST CHILDREN'S TRUST (the "Kest Trust") or its assignee
in accordance with subparagraph 9G of this Agreement. NHL and the Kest
Trust are hereinafter individually and collectively called "Buyer".
R E C I T A L S
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A. Seller is the owner of that certain real property located in
the City of North Richland Hills, County of Tarrant, State of Texas,
consisting primarily of a shopping center sometimes known as "North Hills
Mall".
B. Buyer desires to purchase such shopping center property on the
terms and conditions hereinafter documented.
NOW, THEREFORE, in consideration of the mutual undertakings of the
parties hereto, it is hereby agreed as follows:
1. Purchase and Sale. Seller shall sell to Buyer, and Buyer shall
purchase from Seller, the land (the "Land") described in Exhibit "A"
attached hereto and made a part hereof, together with all improvements,
structures, supplies and fixtures located upon the Land (subject to the
rights and interest of tenants of the Property and their respective
creditors), those items of personal property (the "Personal Property")
described in Exhibit "B" attached hereto and made a part hereof, all right,
title and interest of Seller in and to the name "North Hills Mall", all
right, title and interest of Seller in and to all leases with tenants of
the Property ("Tenant Leases"), and, to the extent assignable without the
consent of third parties, all right, title and interest of Seller in and to
all contract rights, permits, guaranties, warranties, agreements, tenant
lists, advertising material and telephone exchange numbers held solely for
use in connection with the foregoing (hereinafter, collectively, the
"Property"), all upon the terms, covenants and conditions hereinafter set
forth.
2. Purchase Price. The purchase price (the "Purchase Price") for
the Property shall be the sum of $8,500,000.
3. Payment of Purchase Price. The Purchase Price shall be paid to
Seller by Buyer as follows:
A. Escrow Deposit. Concurrently herewith, Buyer shall deliver the
sum of Two Hundred Thousand Dollars ($200,000) (together with all interest
thereon, the "Escrow Deposit") to Chicago Title Insurance Company, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Escrow No.
____________, Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, (which company, in its
capacity as escrow holder hereunder, is called "Escrow Holder"). The
Escrow Deposit hereunder shall be made by Buyer to Escrow Holder pursuant
to wire transfer of immediately available federal funds and the amounts so
deposited shall be held by Escrow Holder as a deposit against the Purchase
Price in accordance with the terms and provisions of this Agreement. At
all times in which the Escrow Deposit is being held by the Escrow Holder,
the Escrow Deposit shall be invested by Escrow Holder in the following
investments ("Approved Investments"): (i) United States Treasury
obligations, (ii) United States Treasury-backed repurchase agreements
issued by a major national money center banking institution reasonably
acceptable to Seller and Buyer, or (iii) such other reasonable manner as
may be reasonably directed by Buyer. The Escrow Deposit shall be disposed
of by Escrow Holder only as provided in this Agreement.
B. Closing Payment. The Purchase Price, as adjusted by the
application of the Escrow Deposit (as a credit to Buyer) and by the
prorations and credits specified herein, shall be paid in cash on the
"Closing Date", as hereinafter defined (the amount to be paid under this
subparagraph B being herein called the "Closing Payment").
4. Conditions Precedent
A. Title Matters.
(1) Title Report. Seller shall order from "Title Company" (as
hereinafter defined) a preliminary title report (together with legible
copies of all underlying documents thereto) for delivery to Buyer within
three (3) business days after the "Effective Date" (as hereinafter
defined). Seller has delivered to Buyer a copy of the most current survey
of the Land in Seller's possession, and such may be updated by Buyer, at
Buyer's sole cost and expense, prior to the expiration of the "Title Review
Period" (as hereinafter defined) (the "Survey"). Buyer shall promptly
order a current title insurance commitment (the "Title Commitment") from
Chicago Title Insurance Company or such other nationally recognized title
company agreed upon by Buyer and Seller (which company, in its capacity as
title insurer hereunder, is herein called the "Title Company"). If Buyer
shall fail to deliver a "Title Objection Notice" (as hereinafter defined)
setting forth those title and survey matters to which Seller objects on or
before the date which is five (5) business days prior to the end of the
"Due Diligence Period", as hereinafter defined (the "Title Review Period"),
Buyer shall be deemed to have approved the status of title and survey
respecting the Property (including the exceptions to title shown on any
title commitment or any matters disclosed on any survey update obtained by
Buyer, but specifically excluding any additional title matters objected to
by Buyer pursuant to subparagraph 4A(2) of this Agreement).
(2) Additional Title Matters. Approval by Buyer of any additional
exceptions to title or survey matters first disclosed after the expiration
of the Title Review Period shall be a condition precedent to Buyer's
obligation to purchase the Property; provided, however, (i) such approval
shall not be unreasonably withheld and (ii) any survey objections (either
with respect to the survey itself or any title exceptions based thereon)
may only be made if Buyer shall have obtained an update of the Survey
during the Title Review Period. Unless Buyer gives a Title Objection
Notice setting forth any such additional exceptions to title or survey
matters to which Buyer disapproves (to the extent permitted hereunder) on
or before the sooner to occur of five (5) business days after receipt of
written notice thereof and the Closing Date, Buyer shall be deemed to have
approved said additional title exception matters.
(3) Title Objections. If Buyer shall disapprove any title or
survey matters which Buyer is permitted to disapprove hereunder, Buyer
shall give written notice thereof ("Title Objection Notice") to Seller
within the time periods provided for in subparagraphs 4A(1) or (2), as
applicable. Upon receipt by Seller of a Title Objection Notice given in a
timely manner, then Seller shall have until the sooner to occur of (1) five
(5) business days from receipt of such Title Objection Notice and (2) the
Closing Date, within which to notify Buyer as to each properly disapproved
matter either that (i) Seller elects not to cause such disapproved matter
to be removed as of the Closing Date (or otherwise take any action with
respect thereto), or (ii) Seller intends to either (a) use commercially
reasonable efforts to cause such disapproved matter to be removed on the
Closing Date, or (b) obtain a title endorsement (if available) insuring
over such disapproved matter; provided, however, Seller shall have no
liability if for any reason, after electing under (ii) above, such
additional disapproved matters are not removed or insured over as of the
Closing Date. Failure to deliver any written notification by Seller of its
election within such period shall be deemed to be an election not to cause
any such additional disapproved matters to be removed. If Seller elects
not to cause any or all such additional disapproved matters to be removed
or insured over as aforesaid, Buyer shall have until the sooner to occur of
(1) five (5) business days from receipt of written notice thereof (or from
the date of Seller's deemed election as aforesaid) and (2) the Closing
Date, within which to notify Seller in writing either that (x) Buyer
revokes its disapproval and will proceed with the purchase of the Property,
subject to the satisfaction of any remaining conditions precedent to
Buyer's obligation to close the transaction which is the subject of this
Agreement, without any reduction in the Purchase Price and will take
subject to such matters, or (y) Buyer terminates this Agreement (and
thereupon the Escrow Deposit shall be delivered to Buyer). Failure to
deliver any written notification by Buyer of its election within such
period shall be deemed to be an election to terminate this Agreement.
Notwithstanding anything to the contrary contained herein, Seller shall be
obligated to cause the removal of any exceptions evidencing any mortgages,
deeds of trust or other loan documents securing any financing obtained or
assumed by Seller and to cause the removal (or to obtain title insurance
over) any tax or judgment liens against Seller and any mechanic's or
materialmen's liens against the Property for work performed by or on behalf
of Seller.
(4) Permitted Exceptions. All matters set forth on the Title
Commitment or the Survey which are not timely objected to by Buyer are
herein called the "Permitted Exceptions". The term "Permitted Exceptions"
shall additionally include any title matters objected to by Buyer, which
objections are either (i) subsequently waived by Buyer, or (ii) removed or
otherwise cured to Buyer's reasonable satisfaction. Buyer shall have the
option to waive the condition precedent set forth in this subparagraph
4A(4) by written notice to Seller. In the event of such waiver, such
condition shall be deemed satisfied.
(5) Exceptions to Title. Buyer shall be obligated to accept title
to the Property, subject to the following exceptions to title:
(a) Real estate taxes and assessments not yet due and payable;
(b) The printed "exclusions from coverage" which appear in the
standard T-1 form owner's policy of title insurance issued by Title Company
in the State of Texas;
(c) Such exceptions to title as may be approved by Buyer pursuant
to the provisions of subparagraph A(1) above, including the Permitted
Exceptions.
Conclusive evidence of the availability of such title shall be the
willingness of Title Company to issue to Buyer on the Closing Date an
owner's title insurance policy issued by the Title Company in the standard
T-1 form ("Owner's Policy"), in the face amount of the Purchase Price,
which policy shows (i) title to the Property to be vested of record in
Buyer, and (ii) the above exceptions to be the only exceptions to title.
B. Due Diligence Reviews. Buyer shall have until 5:00 p.m.
(Central time) on Thursday, July 15, 1999 (the "Due Diligence Period")
within which to perform and complete all of Buyer's due diligence
examinations, reviews and inspections of all matters pertaining to the
purchase of the Property, including all leases and service contracts, and
all physical, environmental and compliance matters and conditions
respecting the Property (other than title and survey matters which shall be
governed by the provisions of subparagraph 4A above). During the Due
Diligence Period, Seller shall provide Buyer with reasonable access to the
Property upon at least forty-eight (48) hours advance notice and shall also
make available to Buyer such leases, contracts and other agreements with
third parties which will remain in effect following the Closing Date, to
the extent the same are in Seller's possession. Buyer shall promptly
commence, and shall diligently and in good faith pursue, its due diligence
review hereunder. During the Due Diligence Period, Buyer and its agents
and consultants shall obtain and keep in effect commercial general
liability insurance naming Seller as an additional insured, with limits of
not less than $1,000,000.00 for property damage, bodily injury or death.
Prior to entering the Property, Buyer shall deliver to Seller certificates
of insurance evidencing such coverage, and further evidencing that such
coverage may only be terminated or modified upon not less than thirty (30)
days prior written notice to Seller. Buyer shall at all times conduct its
due diligence review, inspections and examinations in a manner so as to not
cause damage, loss, cost or expense to Seller or the Property and so as to
not interfere with or disturb any tenant at the Property, and Buyer will
indemnify, defend, and hold the Property and Seller, its constituent
partners and each of their officers, directors, employees, shareholders,
partners, members, affiliates and agents harmless from and against any such
damage, loss, cost or expense (the foregoing obligation surviving closing
or any earlier termination of this Agreement). Without limitation on the
foregoing, in no event shall Buyer (a) make any intrusive physical testing
(environmental, structural or otherwise) at the Property (such as soil
borings, water samplings or the like) without Seller's express written
consent (and shall in all events promptly restore the Property to its prior
condition and repair thereafter); (b) contact any tenant of the Property
without Seller's express written consent; and (c) contact any governmental
authority having jurisdiction over the Property without Seller's express
written consent (which consent as to governmental authorities shall not be
unreasonably withheld). Buyer agrees that any environmental reports
obtained by Buyer shall be kept in draft form until either Buyer has
delivered the Approval Notice (as defined below) or Seller has had the
opportunity to review and comment upon such report. Seller shall have the
right, at its option, to cause a representative of Seller to be present at
all inspections, reviews and examinations conducted hereunder. Buyer shall
promptly deliver to Seller true, accurate and complete copies of any
written environmental or structural reports relating to the Property
prepared for or on behalf of Buyer by any third party and in the event of
termination hereunder, shall return all documents and other materials
furnished by Seller hereunder. Buyer shall keep and cause to be kept all
information or data received or discovered in connection with any of the
inspections, reviews or examinations strictly confidential. If, on or
before the expiration of the Due Diligence Period, Buyer shall determine
that it intends to proceed with the acquisition of the Property, then Buyer
shall promptly notify Seller and Escrow Holder of such determination in
writing (such notice being herein called the "Approval Notice") and
thereafter, Buyer shall have no further right to terminate this Agreement
pursuant to this subparagraph 4B. If, however, on or before the expiration
of the Due Diligence Period, Buyer shall determine in its sole and absolute
discretion that it does not wish to acquire the Property, then Buyer shall
promptly notify Seller of such determination in writing (such notice being
herein called the "Termination Notice"), whereupon the Escrow Deposit (less
any title or escrow cancellation fees incurred in connection with this
Agreement) shall be returned to Buyer and except for those provisions
hereof which survive termination, this Agreement shall terminate. In the
event that, on or before the expiration of the Due Diligence Period, Buyer
shall fail to have delivered the Approval Notice to Seller, Buyer shall be
deemed to have elected not to proceed with the acquisition of the Property
and terminate this Agreement as set forth above. If the approval of
Buyer's investment (or any other) committee is required in order for Buyer
to proceed with and culminate the transaction contemplated by the parties
to this Agreement, Buyer shall obtain such approval or disapproval prior to
the expiration of the Due Diligence Period. Notwithstanding anything in
this subparagraph 4B to the contrary, The Kest Children's Trust, ▇▇▇▇▇▇▇
▇▇▇▇ as trustee, shall have the absolute right prior to the expiration of
the Due Diligence Period to terminate this Agreement (subject to the
provisions hereof which expressly survive termination) by deliver of a
Termination Notice to Seller pursuant to the terms of this Agreement.
C. Performance by Seller. The performance and observance, in all
material respects, by Seller of all covenants and agreements of this
Agreement to be performed or observed by Seller prior to or on the Closing
Date shall be a condition precedent to Buyer's obligation to purchase the
Property. In addition, in the event that the "Seller Closing Certificate"
(as hereinafter defined) shall disclose any material adverse changes in the
representations and warranties of Seller contained in subparagraph 7B below
which are not otherwise permitted or contemplated by the terms of this
Agreement, then Buyer shall have the right to terminate this Agreement.
Buyer shall have the option to waive the condition precedent set forth in
this subparagraph 4C by written notice to Seller. In the event of such
waiver, such condition shall be deemed satisfied.
D. Performance by Buyer. The performance and observance, in all
material respects, by Buyer of all covenants and agreements of this
Agreement to be performed or observed by it prior to or on the Closing Date
shall be a condition precedent to Seller's obligation to sell the Property.
In addition, in the event that the "Buyer Closing Certificate" (as
hereinafter defined) shall disclose any material adverse changes in the
representations and warranties of Buyer contained in subparagraph 7C below
which are not permitted or contemplated by the terms of this Agreement,
then Seller shall have the right to terminate this Agreement. Seller shall
have the option to waive the condition precedent set forth in this
subparagraph 4D by written notice to Buyer. In the event of such waiver,
such condition shall be deemed satisfied.
E. Tenant Estoppel Certificates. Receipt of estoppel certificates
dated not more than 60 days prior to the Closing Date, or not more than 90
days prior to the Closing Date if the same is extended pursuant to
Paragraph 5 of this Agreement, from a sufficient number those certain
tenants in the mall shop premises at the Property having lease terms equal
to or in excess of one year so that estoppel certificates from such tenants
shall be received with respect to not less than 80% of the gross leased
area, in the aggregate (which shall include estoppel certificates from all
such tenants individually occupying over 10,000 square feet of space in the
Property), covered by such leases respecting the mall shop premises at the
Property in effect as of the date hereof, is a condition precedent to
Buyer's obligation to purchase the Property hereunder. Estoppel
certificate from each such tenant shall be substantially in the form of
Exhibit "E-1" attached hereto and made a part hereof; provided, however,
with respect to the any major national tenant, the applicable estoppel
certificate may be in the standard form otherwise required by such entity
or, if applicable tenant lease prescribes the content or required form of
estoppel certificate, then such content or required form shall be deemed
acceptable. In addition, those provisions of the applicable estoppel
certificates respecting defaults, defenses, disputes, claims, offsets,
abatements, concessions and recaptures against rent or other charges may be
limited to the knowledge of the applicable tenant. Seller's shall be
obligated to utilize reasonable efforts to obtain such estoppel
certificates (such reasonable efforts obligation not including any
obligation to institute legal proceedings or to expend any monies therefor,
other than for minor administrative charges, whether imposed by tenants or
incurred by Seller or imposed on Seller pursuant to an applicable lease).
Buyer shall have the option to waive the condition precedent set forth
herein by notice to Seller (whereupon such condition will be deemed
satisfied). In the event that prior to the Closing Date such condition is
not satisfied (or waived as aforesaid), the obligations of Seller to sell,
and Buyer to purchase, the Property hereunder shall terminate.
Notwithstanding anything to the contrary in this Agreement, in the event
Seller is unable to obtain an estoppel certificate from any particular
tenant of the Property, Seller shall have the right (but not the
obligation) to deliver to Buyer on the Closing Date a certificate (the
"Seller Tenant Certificate") in the applicable form attached as Exhibit "E-
2" executed by Seller, certifying that the information set forth in the
estoppel certificate prepared for such tenant, to "Seller's knowledge" (as
defined in subparagraph 7B), is correct in all material respects, and in
such event, Seller shall be deemed to have delivered an estoppel
certificate with respect to such tenant for purposes of satisfying the
condition under this subparagraph 4E, provided that Buyer shall not be
obligated to accept Seller Tenant Certificates covering, in the aggregate,
more than forty percent (40%) of the of the gross leased area of the
Property. Any Seller Tenant Certificate shall be subject to the
limitations set forth in subparagraph 7C and subparagraph 9B of this
Agreement. In addition, Seller shall be released from any liability with
respect to any Seller Tenant Certificate upon the delivery to Buyer of a
estoppel certificate from the tenant for which Seller has delivered such
Seller Tenant Certificate (but only to the extent such estoppel certificate
is consistent with such Seller Tenant Certificate).
▇. ▇▇▇ Estoppel Certificates. Receipt of estoppel certificates
(the "REA Estoppels") dated not more than 60 days prior to the Closing
Date, or not more than 90 days prior to the Closing Date if the same is
extended pursuant to Paragraph 5 of this Agreement, from Mervyn's
("Mervyn's"), ▇▇▇▇▇▇▇▇▇ & ▇▇▇ ("▇▇▇▇▇▇▇▇▇") and ▇▇▇▇▇'▇ ("▇▇▇▇▇'▇") with
respect to that certain Reciprocal Easement Agreement (the "REA") dated
July 11, 1978, as amended, is a condition precedent to Buyer's obligation
to purchase the Property hereunder. The estoppel certificate from
Mervyn's, ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇'▇ shall be substantially in the form of
Exhibit "E-3" attached hereto and made a part hereof. Seller's shall be
obligated to utilize reasonable efforts to obtain the REA Estoppels (such
reasonable efforts obligation not including any obligation to institute
legal proceedings or to expend any monies therefor). Buyer shall have the
option to waive the condition precedent set forth herein by notice to
Seller (whereupon such condition will be deemed satisfied). In the event
that prior to the Closing Date such condition is not satisfied (or waived
as aforesaid), the obligations of Seller to sell, and Buyer to purchase,
the Property hereunder shall terminate.
5. Closing Procedure. The closing ("Closing") of sale and
purchase herein provided shall be consummated through escrow ("Escrow")
with Escrow Holder or, at the election of both Seller and Buyer, through a
closing conference held at a site mutually agreeable to the parties. As
used herein, "Closing Date" means Monday, August 16, 1999, or such earlier
date as may be agreed upon by Buyer and Seller. Notwithstanding anything
to the contrary in this Agreement, Buyer shall have the right to extend the
Closing Date until Wednesday, September 15, 1999, by delivering an
additional NON-REFUNDABLE sum of Two Hundred Thousand Dollars ($200,000)
(the "Extension Deposit") to Escrow Holder on or before 11:00 AM (Central
Time) Thursday, August 12, 1999. Upon Seller's delivery of the "Deed" (as
hereinafter defined) to Escrow Holder and after Buyer has deposited the
Extension Deposit as set forth above, Escrow Holder shall immediately
release the Extension Deposit and the Escrow Deposit (collectively, the
"Deposited Funds") to Seller in accordance with wiring instructions to be
provided to Escrow Holder by Seller, without any requirement that Escrow
Holder first notify or obtain any approval or consent of Buyer. In
furtherance of the foregoing, in the event Seller so instructs Escrow
Holder to release the Deposited Funds, Escrow Holder agrees that it shall
not be permitted to, and shall not, follow any conflicting instructions
given by Buyer or any third party as to the disposition of the Deposited
Funds, but shall instead follow only the instructions of Seller in
connection therewith. Buyer agrees in such instance not to deliver any
conflicting instructions to Escrow Holder for any reason.
A. Escrow. On or before 11:00 AM (Central time) on the Closing
Date, the parties shall deliver to Escrow Holder the following: (1) by
Seller, a duly executed and acknowledged original special warranty deed
("Deed") in the form of Exhibit "F" attached hereto and made a part hereof,
subject to all matters of record other than those matters created by or
through Seller which are not Permitted Exceptions, and (2) by Buyer, the
Closing Payment in immediately available federal funds. Such deliveries
and the "Additional Deliveries" listed below shall be made through Escrow
pursuant to escrow instructions ("Escrow Instructions") to be executed
among Buyer, Seller and Escrow Holder in form reasonably acceptable to such
parties in order to effectuate the intent hereof. The conditions to the
closing of such escrow shall include the Escrow Holder's receipt of the
Deed, the Closing Payment and a notice from each of Buyer and Seller
authorizing Escrow Holder to close the transactions as contemplated herein
(each of Buyer and Seller being obligated to deliver such authorization
notice as soon as it is reasonably satisfied that the other party is in a
position to deliver the items to be delivered by such other party under
subparagraph 5B below).
B. Delivery to Parties. Upon the satisfaction of the conditions
set forth in the Escrow Instructions, then (x) the Deed shall be delivered
to Buyer by Escrow Holder's depositing the same for recordation, (y) the
Closing Payment (and the Escrow Deposit) shall be delivered by Escrow
Holder to Seller and (z) the following items shall be delivered:
(1) Seller - Additional Deliveries. Seller shall deliver the
following (together with the Additional Deliveries set forth in
subparagraph 5B(3) below, the "Additional Deliveries") to Escrow to be
delivered to Buyer upon the Closing:
(a) A duly executed and acknowledged ▇▇▇▇ of sale, assignment and
assumption agreement ("Assignment and Assumption Agreement") in the form of
Exhibit "G" attached hereto and made a part hereof;
(b) A certificate of Seller ("Seller Closing Certificate") updating
the representations and warranties contained in subparagraph 7B hereof to
the Closing Date (and including an updated list of leases) and noting any
changes thereto;
(c) Duly executed and acknowledged certificates regarding the "non-
foreign" status of Seller;
(d) A duly executed form notice to tenant of the Property ("Notice
to Tenant") in the form of Exhibit "D" attached hereto and made a part
hereof;
(e) A duly executed copy of the closing statement prepared by
Escrow Holder ("Closing Statement") reasonably acceptable to Seller;
(f) Evidence reasonably satisfactory to Buyer and Title Company
respecting the due organization of Seller and the due authorization and
execution of this Agreement and the documents required to be delivered
hereunder; and
(g) Such additional documents as may be reasonably required by
Buyer and Title Company in order to consummate the transactions hereunder
(provided the same do not materially increase the costs to, or liability or
obligations of, Seller in a manner not otherwise provided for herein).
(2) Seller - Property Deliveries. To the extent in Seller's or
Seller's property manager's possession and control, and to the extent not
previously delivered to Buyer, Seller shall deliver to Buyer the following
at the Property (through delivery of ownership and possession of the
Property to Buyer) upon the Closing:
(a) original, fully executed counterpart copies of all tenant
leases and Service Agreements directly relating to the Property;
(b) the original certificate or certificates of occupancy and fire
underwriter certificates for the Property and the originals of the other
certificates, licenses and permits (including all amendments,
modifications, supplements and extensions thereof), and variances issued by
any municipal, state or federal agency or authority relating to the
ownership, use, occupancy, operation or maintenance of the Property;
(c) copies of all guaranties or warranties then in effect and
directly relating to the Property;
(d) to the extent not prorated pursuant to subparagraph 5D of this
Agreement, all unapplied tenant security deposits and any prepaid rents and
other sums held by Seller as landlord under the leases on the Property;
(e) all building plans, specification and drawings maintained by or
on behalf of Seller for the improvements on the Property;
(f) a complete set of keys for the Property; and
(g) copies of all engineering reports, surveys, soil tests and
environmental reports directly concerning the Property.
(3) Buyer - Additional Deliveries. Buyer shall deliver the
following (together with the Additional Deliveries set forth in
subparagraph 5B(1) above, the "Additional Deliveries") to Escrow to be
delivered to Seller upon the Closing:
(a) A duly executed and acknowledged Assignment and Assumption
Agreement;
(b) A certificate of Buyer ("Buyer Closing Certificate") updating
the representations and warranties contained in subparagraph 7C hereof to
the Closing Date and noting any changes thereto;
(c) A duly executed Notice to Tenant (which shall be collated by
Escrow Holder with the Seller executed counterpart of such notice and
delivered, in its fully executed form, to Buyer upon the Closing, and Buyer
represents and warrants to Seller that a copy of the Notice to Tenant shall
be either (i) hand delivered or (ii) delivered via certified mail to each
tenant of the Property within two (2) business days following the Closing);
(d) A duly executed copy of the Closing Statement reasonably
acceptable to Buyer;
(e) Evidence reasonably satisfactory to Seller and Title Company
respecting the due organization of Buyer and the due authorization and
execution of this Agreement and the documents required to be delivered
hereunder; and
(f) Such additional documents as may be reasonably required by
Seller and Title Company in order to consummate the transactions hereunder
(provided the same do not materially increase the costs to, or liability or
obligations of, Buyer in a manner not otherwise provided for herein).
C. Closing Costs. Buyer shall pay (i) all costs and expenses,
including premiums and survey costs, of any title work or coverage beyond
the premium attributable to the standard coverage portion of the Owner's
Policy, including any extended coverage and any endorsements (including
survey endorsements) required by Buyer, if any, to supplement or modify the
Owner's Policy, (ii) the cost of any updates to the Survey, (iii) one half
of the escrow closing costs of the Title Company, (iv) all transfer and
recordation taxes, if any, payable in connection with the Deed, and (v) one
half of the sales tax in connection with the sale of the Personal Property.
Buyer shall pay all fees, costs or expenses in connection with Buyer's due
diligence reviews hereunder. Seller shall pay (a) the premium attributable
to the standard coverage portion of the Owner's Policy (b) one half of the
escrow closing costs of the Title Company, and (c) one half of the sales
tax in connection with the sale of the Personal Property. Seller and Buyer
shall each be responsible for the fees of its own legal counsel and shall
pay their respective shares of prorations as hereinafter provided.
D. Prorations.
(1) Items to be Prorated. The following shall be prorated between
Seller and Buyer as of the Closing Date:
(a) All real estate taxes and assessments on the Property payable
in respect to the current fiscal year of the applicable taxing authority in
which the Closing Date occurs (the "Current Tax Year"). Such real estate
taxes and assessments shall be prorated on a per diem basis based upon the
number of days in the Current Tax Year prior to the Closing Date (which
shall be allocated to Seller) and the number of days in the Current Tax
Year on and after the Closing Date (which shall be allocated to Buyer).
Upon the Closing Date and subject to the adjustment provided for above,
Buyer shall be responsible for real estate taxes and assessments on the
Property payable in respect to the Current Tax Year and all periods after
the Current Tax Year. However, in no event shall Seller be charged with or
be responsible for any increase in the taxes or assessments on the Property
resulting from the sale of the Property or from any improvements made or
leases entered into at any time or for any reason. In the event that any
assessments on the Property are payable in installments, then the
installment for the Current Tax Year shall be prorated in the manner set
forth above (with Buyer assuming the obligation to pay any installments due
after the Closing Date). With respect to the Current Tax Year and all
prior periods, Seller hereby reserves the right to institute or continue
any proceeding or proceedings for the reduction of the assessed valuation
of the Property, and, in its sole discretion, to settle the same. Seller
shall have sole authority to control the progress of, and to make all
decisions with respect to, such proceedings. All net tax refunds and
credits attributable to any period prior to the Current Tax Year shall
belong to and be the property of Seller. All net tax refunds and credits
attributable to any period subsequent to the Current Tax Year shall belong
to and be the property of Buyer. All net tax refunds and credits
attributable to the Current Tax Year shall be apportioned in the same
manner as provided above for taxes and assessments for such Current Tax
Year, after deducting all expenses, including attorneys' and consultants'
fees and costs and disbursements, incurred in obtaining such refund, and if
applicable, all amounts payable in connection therewith to tenants pursuant
to Tenant Leases. Buyer agrees to cooperate with Seller in connection with
the prosecution of any such proceedings and to take all steps, whether
before or after the Closing Date, as may be necessary to carry out the
intention of this subparagraph, including the delivery to Seller, upon
demand, of any relevant books and records, including receipted tax bills
and cancelled checks used in payment of such taxes, the execution of any
and all consent or other documents, and the undertaking of any acts
necessary for the collection of such refund by Seller. Buyer agrees that,
as a condition to the transfer of the Property by Buyer, Buyer will cause
any transferee to assume the obligations set forth herein.
(b) All rentals and other tenant charges and reimbursements
received in respect to the month in which the Closing Date occurs (the
"Current Month"). Such rentals and other tenant charges and "Additional
Rents" (as defined below) for the Current Month which have been received as
of the Closing Date shall be prorated on a per diem basis based upon the
number of days in the Current Month prior to the Closing Date (which shall
be allocated to Seller) and the number of days in the Current Month on and
after the Closing Date (which shall be allocated to Buyer). In addition,
Seller shall be credited on the Closing Date with its share of (i) rents
and other tenant charges and Additional Rents for the Current Month which
have not been received as of the Closing Date and (ii) any "percentage-in-
lieu" rent for the month of July (estimated to be $25,000) which has not
been received as of the Closing Date (not customarily paid until the
following month). All rentals and other tenant charges and Additional
Rents received by Buyer from a tenant after the Closing Date shall first be
applied to the most recently accrued obligation of such tenant. After
application as set forth above, Buyer shall promptly remit to Seller that
portion of rentals and other tenant charges and Additional Rents received
after the Closing Date attributable to periods prior to the Current Month.
Seller hereby reserves its right to institute an action against any tenant
for delinquent rentals and other tenant charges and Additional Rents
attributable to periods prior to the Current Month, and Buyer shall
cooperate in such proceedings at no cost or expense to Buyer. Tenants of
the Property may be obligated to pay, as additional rent, certain
percentage rent, escalations in base rent and pass-throughs of operating
and similar expenses pursuant to the terms of the Tenant Leases
(collectively, "Additional Rents").
(c) All operating expenses (including all charges under all
contracts and agreements assumed by Buyer under the Assignment and
Assumption Agreement). As to each service provider, operating expenses
payable or paid to such service provider in respect to the billing period
of such service provider in which the Closing Date occurs (the "Current
Billing Period"), shall be prorated on a per diem basis based upon the
number of days in the Current Billing Period prior to the Closing Date
(which shall be allocated to Seller) and the number of days in the Current
Billing Period on and after the Closing Date (which shall be allocated to
Buyer), and assuming that all charges are incurred uniformly during the
Current Billing Period. If actual bills for the Current Billing Period are
unavailable as of the Closing Date, then such proration shall be made on an
estimated basis based upon the most recently issued bills.
(2) Security Deposits; Prepaid Rents. Prepaid rentals and other
tenant charges and Additional Rents for periods after the Current Month,
and the current balance of the security deposits (including any portion
thereof which may be designated as prepaid rent) under Tenant Leases, if
and to the extent that such deposits are in Seller's actual possession and
have not been otherwise applied by Seller to any obligations of any tenants
under the Tenant Leases, shall be credited against the Purchase Price, and
upon the closing of the transaction contemplated hereby, Buyer shall assume
full responsibility for all security deposits to be refunded to the tenants
under the Tenant Leases (to the extent the same are required to be refunded
by the terms of such Tenant Leases or applicable law, whether or not Buyer
received credit for the same pursuant to this subparagraph). Seller shall
not apply or take for its own account any security deposit of any tenants
under the Tenant Leases unless such application or taking is authorized by
the terms of such Tenant Lease.
(3) Calculation. The prorations and payments shall be made on the
basis of a written statement submitted by Title Company to Buyer and Seller
prior to the Closing Date and approved by Buyer and Seller, provided that
real estate taxes and assessments on the Property payable in respect to the
current fiscal year shall be deemed to be 100% of the 1998 tax year amount.
Any item which cannot be finally prorated because of the unavailability of
information shall be tentatively prorated on the basis of the best data
then available and re-prorated when the information is available.
(4) Items Not Prorated. Seller and Buyer agree that (a) none of
the insurance policies relating to the Property will be assigned to Buyer
and Buyer shall responsible for arranging for its own insurance as of the
Closing Date; (b) utilities, including telephone, electricity, water and
gas, shall be read on the Closing Date and Buyer shall be responsible for
all the necessary actions needed to arrange for utilities to the name of
Buyer on the Closing Date, including the posting of any required deposits
(it being understood that Seller shall be entitled to recover and retain
from the providers of such utilities (i) any utility deposits which it or
its predecessors have made prior to the Closing Date, and (ii) any refunds
or overpayments to the extent applicable to the period prior to the Closing
Date); (c) no employee of Seller performing services at or related to the
Property shall become the employee of Buyer; and (d) on the Closing Date,
it is contemplated that the Property will not be subject to any financing
obtained by Seller or its predecessors. Accordingly, there will be no
prorations for insurance, utilities, payroll or debt service. In the event
a meter reading is unavailable for any particular utility, such utility
shall be prorated in the manner provided in subparagraph 5D(1)(c) above.
(5) Indemnification. Buyer shall indemnify, protect, defend and
hold Seller harmless from and against any obligation, liability, claim
(including any claim for damage to property or injury to or death of any
persons), lien or encumbrance, loss, damage, cost or expense, including
attorney's fees, whether or not legal proceedings are instituted
(individually, a "Claim"), in any way arising from the matters for which
Buyer receives a credit or otherwise assumes responsibility pursuant to
this Paragraph 5D or the Assignment and Assumption.
(6) Survival. This Paragraph 5D shall survive the Closing Date and
delivery and recordation of the Deed. Notwithstanding the foregoing, any
re-proration made pursuant to subparagraph 5D(3) above shall be made, if at
all, on or before November 15, 1999.
6. Condemnation or Destruction of Property. In the event that,
after the date hereof but prior to the Closing Date, either any portion of
the Property is taken pursuant to eminent domain proceedings or any of the
improvements on the Property are damaged or destroyed by any casualty,
Seller shall have no obligation to repair or replace any such damage or
destruction. Seller shall, upon consummation of the transaction herein
provided, assign to Buyer all claims of Seller respecting any condemnation
or casualty insurance coverage, as applicable, and all condemnation
proceeds or proceeds from any such casualty insurance received by Seller on
account of any casualty (the damage from which shall not have been repaired
by Seller prior to the Closing Date), as applicable, and Seller shall pay
to Buyer any unpaid deductible amounts payable by Seller pursuant to such
insurance coverage assigned to Buyer. Notwithstanding anything to the
contrary herein, Seller shall retain any proceeds received from (and the
right to receive any proceeds of) rental income insurance or a temporary
taking award that are attributable to a period prior to the Closing Date.
In the event the condemnation award or the cost of repair of damage to the
Property on account of a casualty, as applicable, shall exceed $500,000,
Buyer may, at its option, terminate this Agreement by notice to Seller,
given on or before the Closing Date (whereupon the Escrow Deposit shall be
returned to Buyer and, except for those provisions hereof which survive
termination, this Agreement shall terminate).
7. Representations, Warranties and Covenants.
A. General Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN
SUBPARAGRAPHS 7B AND 9A BELOW, THE SALE OF THE PROPERTY HEREUNDER 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
PROPERTY, THE PHYSICAL CONDITION OF THE PROPERTY (INCLUDING, BUT NOT
LIMITED TO, THE CONDITION OF THE SOIL OR THE IMPROVEMENTS), THE
ENVIRONMENTAL CONDITION OF THE PROPERTY (INCLUDING, BUT NOT LIMITED TO, THE
PRESENCE OR ABSENCE OF HAZARDOUS SUBSTANCES ON OR RESPECTING THE PROPERTY),
THE COMPLIANCE OF THE 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 PROPERTY), THE FINANCIAL CONDITION
OF THE PROPERTY OR ANY OTHER REPRESENTATION OR WARRANTY RESPECTING ANY
INCOME, EXPENSES, CHARGES, LIENS OR ENCUMBRANCES, RIGHTS OR CLAIMS ON,
AFFECTING OR PERTAINING TO THE PROPERTY OR ANY PART THEREOF. Buyer
acknowledges that, during the Due Diligence Period, Buyer will examine,
review and inspect all matters which in Buyer's judgment bear upon the
Property and its value and suitability for Buyer's purposes. Except as to
matters specifically set forth in subparagraph 7A(2) below, Buyer will
acquire the Property solely on the basis of its own physical and financial
examinations, reviews and inspections and the title insurance protection
afforded by the Owner's Policy. WITHOUT LIMITATION THEREON, BUYER HEREBY
WAIVES AND DISCLAIMS (1) ANY WARRANTY, EXPRESS, IMPLIED OR ARISING BY
OPERATION OF LAW, INCLUDING ANY WARRANTY OF HABITABILITY, MERCHANTABILITY,
SUITABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE AND (2) ANY AND ALL
RIGHTS OF CONTRIBUTION OR OTHER RIGHTS OR REMEDIES AGAINST SELLER UNDER THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF
1980 (AS AMENDED) OR ANY OTHER APPLICABLE ENVIRONMENTAL LAWS, RULES OR
REGULATIONS, WHETHER FEDERAL, STATE OR LOCAL.
B. Limited Representations and Warranties of Seller. Seller
hereby represents and warrants that to Seller's knowledge and except as set
forth in Exhibit "H" attached hereto and made a part hereof:
(1) List of Leases. Attached as Exhibit "I" and made a part hereof
is a true, complete and accurate list, as of the date thereof, of all
tenant leases respecting the Property.
(2) Litigation. Except as set forth in Exhibit "C" attached hereto
and made a part hereof, there is no pending action, litigation,
condemnation or other proceeding (and Seller has received no written notice
of threatened actions) against the Property or against Seller with respect
to the Property.
(3) Service Agreements. Other than those which are cancelable on
not more than 30 days' notice without premium or penalty, Seller has not
entered into any service agreements or contracts ("Service Agreements") or
other agreements (other than as set forth in this Agreement) relating to
the Property which will be in force on the Closing Date or any time
thereafter, except as described in Exhibit "J" attached hereto.
(4) Due Authority. This Agreement and all agreements, instruments
and documents herein provided to be executed or to be caused to be executed
by Seller are and on the Closing Date will be duly authorized, executed and
delivered by and are binding upon Seller. Seller is a general partnership,
duly organized and validly existing under the laws of the State of
Illinois, and is duly authorized and qualified to do all things required of
it under this Agreement. Seller has the capacity and authority to enter
into this Agreement and consummate the transactions herein provided.
(5) Environmental Matters. The environmental reports described in
Exhibit "K" attached hereto and made a part hereof (collectively, the
"Environmental Reports") constitute all third party environmental reports
concerning the Property in Seller's possession or control.
For the purposes of this subparagraph 7B, "Seller's knowledge" shall mean
only the present actual knowledge (without duty of investigation or
inquiry) of ▇▇▇ ▇▇▇▇▇▇▇, Vice President of JMB Realty Corporation and
partnership coordinator overseeing the investment of Seller in the
Property.
C. Survival. Any cause of action of a party for a breach of the
foregoing representations and warranties shall survive until November 30,
1999 (the "Survival Period"), at which time such representations and
warranties (and any cause of action resulting from a breach thereof not
then in litigation) shall terminate. Notwithstanding the foregoing, if
Buyer shall have actual knowledge as of the Closing Date that any of the
representations or warranties of Seller contained herein are false or
inaccurate or that Seller is in breach or default of any of its obligations
under this Agreement, and Buyer nonetheless closes the transactions
hereunder and acquires the Property, then Seller shall have no liability or
obligation respecting such false or inaccurate representations or
warranties or other breach or default (and any cause of action resulting
therefrom shall terminate upon such closing hereunder).
D. Interim Covenants of Seller. Until the Closing Date or the
sooner termination of this Agreement:
(1) Seller shall maintain the Property in the same manner as prior
hereto (including the maintenance of any existing insurance policies)
pursuant to its normal course of business (such maintenance obligations not
including extraordinary capital expenditures), subject to reasonable wear
and tear and further subject to destruction by casualty or other events
beyond the control of Seller.
(2) Seller shall not enter into any additional service contracts or
other similar agreements without the prior consent of Buyer, except those
deemed reasonably necessary by Seller which are cancelable on 30 days'
notice without premium or penalty.
(3) Prior to the expiration of the Due Diligence Period, Seller
shall continue to offer the Property for lease in the same manner as prior
hereto pursuant to its normal course of business and shall notify Buyer of
all leases entered into from and after the date hereof. Upon the
expiration of the Due Diligence Period and until the Closing or the sooner
termination of this Agreement (and provided that Buyer has timely delivered
the Approval Notice to Seller), Seller shall not enter into any new leases
or modifications of existing leases without the prior consent of Buyer
(which consent may not be unreasonably withheld or materially delayed).
7.5. TEXAS WAIVERS. WITHOUT LIMITATION ON ANY OTHER LIMITATION OF
SELLER'S LIABILITY HEREUNDER, IT IS THE INTENT OF SELLER AND BUYER TO WAIVE
ALL OF THE PROVISIONS (OTHER THAN SECTION 17.555) OF THE TEXAS DECEPTIVE
TRADE PRACTICES -- CONSUMER PROTECTION ACT, SUBCHAPTER E OF CHAPTER 17 OF
THE TEXAS BUSINESS AND COMMERCE CODE (THE "DTPA") AS SUCH PROVISIONS ARE OR
MAY BE APPLICABLE TO THIS AGREEMENT AND THE TRANSACTION EVIDENCED HEREBY.
ACCORDINGLY, SELLER AND BUYER HEREBY REPRESENT AND AGREE AS FOLLOWS:
(1) BUYER REPRESENTS TO SELLER THAT, WITH RESPECT TO THIS AGREEMENT,
BUYER IS A BUSINESS CONSUMER AS THAT TERM IS USED IN THE DTPA (I.E., BUYER
IS AN INDIVIDUAL, PARTNERSHIP OR CORPORATION WHO SEEKS OR ACQUIRES BY
PURCHASE OR LEASE, ANY GOODS OR SERVICES FOR COMMERCIAL OR BUSINESS USE),
THAT BUYER HAS ASSETS OF $5 MILLION OR MORE ACCORDING TO THE MOST RECENT
FINANCIAL STATEMENT OF BUYER PREPARED IN ACCORDANCE WITH GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES, THAT BUYER HAS KNOWLEDGE AND EXPERIENCE IN FINANCIAL
AND BUSINESS MATTERS THAT ENABLE IT TO EVALUATE THE MERITS AND RISKS OF A
TRANSACTION AND THAT BUYER IS NOT IN A SIGNIFICANTLY DISPARATE BARGAINING
POSITION WITH RESPECT TO THIS AGREEMENT AND THE TRANSACTION EVIDENCED
HEREBY.
(2) SELLER AND BUYER HEREBY AGREE, FOR THEMSELVES AND THEIR RESPECTIVE
HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS, THAT ALL OF THE
PROVISIONS OF THE DTPA (EXCEPT FOR SECTION 17.555 THEREOF) WHICH ARE OR MAY
BE APPLICABLE TO THIS AGREEMENT AND THE TRANSACTION EVIDENCED HEREBY ARE
HEREBY WAIVED, INCLUDING SPECIFICALLY, WITHOUT LIMITATION, ALL RIGHTS AND
REMEDIES RESULTING FROM OR ARISING OUT OF ANY AND ALL ACTS OR PRACTICES OF
THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTION
EVIDENCED HEREBY, REGARDLESS OF WHETHER SUCH ACTS OR PRACTICES OCCURRED
BEFORE OR AFTER THE EXECUTION OF THIS AGREEMENT. THE PROVISIONS OF THIS
PARAGRAPH 7.5 SHALL SURVIVE THE CLOSING OR ANY TERMINATION OF THIS
AGREEMENT.
_______ ________
Buyer's Initials
8. DISPOSITION OF DEPOSIT. IF THE TRANSACTION HEREIN PROVIDED
SHALL NOT BE CLOSED BY REASON OF SELLER'S DEFAULT UNDER THIS AGREEMENT OR
THE FAILURE OF SATISFACTION OF THE CONDITIONS DESCRIBED IN PARAGRAPH 4
HEREOF OR THE TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH PARAGRAPH 6
HEREOF, THEN THE ESCROW DEPOSIT SHALL BE RETURNED TO BUYER, AND NEITHER
PARTY SHALL HAVE ANY FURTHER OBLIGATION OR LIABILITY TO THE OTHER;
PROVIDED, HOWEVER, IF THE TRANSACTIONS HEREUNDER SHALL FAIL TO CLOSE SOLELY
BY REASON OF SELLER'S DEFAULT, AND BUYER IS NOT IN DEFAULT UNDER THIS
AGREEMENT AND SHALL BE READY, WILLING AND ABLE TO CLOSE, THEN BUYER SHALL
BE ENTITLED TO SPECIFICALLY ENFORCE THIS AGREEMENT (BUT NO OTHER ACTION,
FOR DAMAGES OR OTHERWISE, SHALL BE PERMITTED). IN THE EVENT THE
TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE BY REASON OF BUYER'S DEFAULT
UNDER THIS AGREEMENT, THEN THE ESCROW DEPOSIT SHALL BE DELIVERED TO SELLER
AS FULL COMPENSATION AND LIQUIDATED DAMAGES UNDER AND IN CONNECTION WITH
THIS AGREEMENT. IN THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL CLOSE,
THE ESCROW DEPOSIT SHALL BE APPLIED AS A PARTIAL PAYMENT OF THE PURCHASE
PRICE. IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE THAT SELLER
WILL INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT AND THAT THE PROPERTY WILL BE REMOVED FROM THE MARKET; FURTHER,
THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF
DETRIMENT TO SELLER CAUSED BY THE BREACH BY BUYER UNDER THIS AGREEMENT AND
THE FAILURE OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT
OF BUYER'S BREACH OR DEFAULT. IN THE EVENT THE SALE OF THE PROPERTY SHALL
NOT BE CONSUMMATED ON ACCOUNT OF BUYER'S DEFAULT, THEN THE RETENTION OF THE
ESCROW DEPOSIT SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY UNDER THIS
AGREEMENT BY REASON OF SUCH DEFAULT, SUBJECT TO THE PROVISIONS OF
SUBPARAGRAPH 9I HEREOF AND SELLER'S RIGHT TO PURSUE AND RECOVER ON A CLAIM
WITH RESPECT TO ANY OF ITS RIGHTS UNDER SUBPARAGRAPH 4B HEREOF.
_____________ _______ ________
Seller's Initials Buyer's Initials
9. Miscellaneous.
A. Brokers.
(1) Except as provided in subparagraph 9A(2) below, Seller
represents and warrants to Buyer, and Buyer represents and warrants to
Seller, 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 Seller shall indemnify and defend Buyer from the
same if it shall be based upon any statement or agreement alleged to have
been made by Seller, and Buyer shall indemnify and defend Seller from the
same if it shall be based upon any statement or agreement alleged to have
been made by Buyer. The indemnification obligations under this
subparagraph 9A(1) shall survive the closing of the transactions hereunder
or the earlier termination of this Agreement.
(2) If and only if the sale contemplated herein closes, Seller
agrees to pay a brokerage commission to Hamptons International ("Broker")
pursuant to a separate written agreement with Broker.
B. Limitation of Liability.
(1) Notwithstanding anything to the contrary contained herein, if
the closing of the transactions hereunder shall have occurred (and Buyer
shall not have waived, relinquished or released any applicable rights in
further limitation), the aggregate liability of Seller arising pursuant to
or in connection with the representations, warranties, indemnifications,
covenants or other obligations (whether express or implied) of Seller under
this Agreement (or any document executed or delivered in connection
herewith) shall not exceed $250,000.
(2) In no event shall Seller have any liability pursuant to or in
connection with the representations, warranties, indemnifications,
covenants or other obligations (whether express or implied under this
Agreement or any document executed or delivered in connection therewith),
if any, unless and until such liabilities shall exceed $10,000 in the
aggregate; provided, however, nothing contained in the foregoing shall
limit Seller's liability for any proration amounts provided for in this
Agreement.
(3) No direct or indirect partner in or agent of Seller, nor any
partner, member, trustee, director, officer, employee, beneficiary,
shareholder, participant, representative, advisor or agent of any entity
that is or becomes a direct or indirect partner in Seller 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 Buyer
and its successors and assigns and, without limitation, all other persons
and entities, shall look solely to Seller's assets for the payment of any
claim or for any performance, and Buyer, on behalf of itself and its
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 direct or indirect partner in
Seller (or in any other direct or indirect partner of Seller), nor any
obligation of any direct or indirect partner in Seller (or in any other
direct or indirect partner of Seller) to restore a negative capital account
or to contribute capital to Seller (or to any other direct or indirect
partner of Seller), shall at any time be deemed to be the property or an
asset of Seller or any such other direct or indirect partner (and neither
Buyer nor any of its 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).
C. Entire Agreement. This Agreement contains the entire agreement
between the parties respecting the matters herein set forth and supersedes
all prior agreements between the parties hereto respecting such matters.
This Agreement may not be modified or amended except by written agreement
signed by both parties.
D. Time of the Essence. Time is of the essence of this Agreement.
E. Interpretation. Paragraph headings shall not be used in
construing this Agreement. Each party acknowledges that such party and its
counsel, after negotiation and consultation, have reviewed and revised this
Agreement. As such, the terms of this Agreement shall be fairly construed
and the usual rule of construction, to the effect that any ambiguities
herein should be resolved against the drafting party, shall not be employed
in the interpretation of this Agreement or any amendments, modifications or
exhibits hereto or thereto.
F. Governing Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of Texas.
G. Successors and Assigns. Buyer may not assign or transfer its
rights or obligations under this Agreement without the prior written
consent of Seller (in which event such transferee shall assume in writing
all of the transferor's obligations hereunder, but such transferor shall
not be released from its obligations hereunder); provided, however, Buyer
may assign its interest in this Agreement to a limited partnership or
limited liability company in which Buyer or Buyer's principals is (are) the
managing general partner or managing member, as applicable, and has (have)
not less than a 51% interest in capital and profits in such entity. No
consent given by Seller to any transfer or assignment of Buyer's rights or
obligations hereunder shall be construed as a consent to any other transfer
or assignment of Buyer's rights or obligations hereunder. No transfer or
assignment in violation of the provisions hereof shall be valid or
enforceable. Subject to the foregoing, this Agreement and the terms and
provisions hereof shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
H. 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
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 Buyer:
North Hills, Ltd.
c/o ▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
TEL: (▇▇▇) ▇▇▇-▇▇▇▇
And to:
The Kest Children's Trust
c/o RSM Investments, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
TEL: (▇▇▇) ▇▇▇-▇▇▇▇
To Seller:
North Hills Mall Associates
c/o JMB Realty Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇ ▇▇▇▇▇▇▇ & ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
TEL: (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇. ▇▇▇▇▇▇▇)
TEL: (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇. ▇▇▇▇▇▇▇)
With copy to:
Pircher, ▇▇▇▇▇▇▇ & ▇▇▇▇▇
1999 Avenue of the Stars
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Real Estate Notices (WHJ/CSH)
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
TEL: (▇▇▇) ▇▇▇-▇▇▇▇
And to:
Hamptons International
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
TEL: (▇▇▇) ▇▇▇-▇▇▇▇
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
may be given by facsimile transmission and 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).
I. Legal Costs. The parties hereto agree that they shall pay
directly any and all legal costs which they have incurred on their own
behalf in the preparation of this Agreement, all deeds and other agreements
pertaining to this transaction and that such legal costs shall not be part
of the closing costs. In addition, if either Buyer or Seller brings any
suit or other proceeding with respect to the subject matter or the
enforcement of this Agreement, the prevailing party (as determined by the
court, agency or other authority before which such suit or proceeding is
commenced), in addition to such other relief as may be awarded, shall be
entitled to recover reasonable attorneys' fees, expenses and costs of
investigation actually incurred. The foregoing includes, but is not
limited to, attorneys' fees, expenses and costs of investigation
(including, without limitation, those incurred in appellate proceedings),
costs incurred in establishing the right to indemnification, or in any
action or participation in, or in connection with, any case or proceeding
under Chapter 7, 11 or 13 of the Bankruptcy Code (11 United States Code
Sections 101 et seq.), or any successor statutes.
J. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same document.
THE SUBMISSION OF THIS AGREEMENT FOR EXAMINATION IS NOT INTENDED TO
NOR SHALL CONSTITUTE AN OFFER TO SELL, OR A RESERVATION OF, OR OPTION OR
PROPOSAL OF ANY KIND FOR THE PURCHASE OF THE PROPERTY. IN NO EVENT SHALL
ANY DRAFT OF THIS AGREEMENT CREATE ANY OBLIGATION OR LIABILITY, IT BEING
UNDERSTOOD THAT THIS AGREEMENT SHALL BE EFFECTIVE AND BINDING ONLY WHEN A
COUNTERPART HEREOF HAS BEEN EXECUTED AND DELIVERED BY EACH PARTY HERETO TO
ESCROW HOLDER. ESCROW HOLDER SHALL DATE THIS AGREEMENT WITH THE DATE ON
WHICH ESCROW HOLDER SHALL HAVE RECEIVED THIS AGREEMENT EXECUTED BY BOTH
BUYER AND SELLER (AND SUCH DATE SHALL BE THE "EFFECTIVE DATE" FOR PURPOSES
HEREOF).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
SELLER:
NORTH HILLS MALL ASSOCIATES,
an Illinois general partnership
By: JMB Income Properties, Ltd.-X,
an Illinois limited partnership
By: JMB Realty Corporation,
a Delaware corporation,
Its General Partner
By:
--------------------
Name:
--------------------
Title:
--------------------
BUYER:
NORTH HILLS, LTD.,
a Texas limited partnership
▇▇▇▇ ▇▇▇▇▇▇▇ & CO., INC.,
a Texas corporation,
its general partner
By:
--------------------
Name:
--------------------
Title:
--------------------
THE KEST CHILDREN'S TRUST
By:
---------------------
▇▇▇▇▇▇▇ ▇▇▇▇, Trustee
ESCROW HOLDER'S ACKNOWLEDGEMENT
-------------------------------
The undersigned hereby executes this Agreement to evidence its
agreement to act as Escrow Holder in accordance with the terms of this
Agreement.
Effective Date: June ___, 1999
CHICAGO TITLE INSURANCE COMPANY
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
"Escrow Holder"
EXHIBIT LIST
------------
"A" - Property Description
"B" - Personal Property
"C" - Pending Litigation
"D" - Notice to Tenant
"E-1" - Form of Estoppel Certificate
"E-2" - Form of Seller Tenant Certificate
"E-3" - Form of REA Estoppel Certificate
"F" - Form of Deed
"G" - Assignment and Assumption Agreement
"H" - Exceptions to Seller's Representations and
Warranties
"I" - List of Leases
"J" - Service Agreements
"K" Environmental Reports
EXHIBIT "A"
PROPERTY DESCRIPTION
[Attach Title Company Legal Description]
EXHIBIT "B"
PERSONAL PROPERTY
Tool box with tools: 2
[one 9-drawer rollaway & one 6-drawer top]
1/2 hp drill 1
7 1/4" circular saw 1
1/3 hip jigsaw 1
3" belt sander 1
Soldering gun 1
Multi Meter 1
Clamp on Ampmeter 1
Personnel Lift 1
5 Foot Ladder 1
8 Foot Ladder 1
10 Foot Ladder 2
2 Wheel Dolly 2
4 Wheel Cart 3
32 Foot Exterior Ladder 1
20 Foot Exterior Ladder 1
Tile Cutter 1
Bolt Cutters 2
Tray Wash Machine 1
Hand Drain Cleaning Machine 1
Tool Box for Small Drain Cleaning Machine 1
3/4 H.P. Air Compressor 1
Welding Torch Set 1
6 Foot Ladder 1
Sheetrock Dolly 1
Wheel ▇▇▇▇▇▇ 1
Grey Metal Utility Cabinet with Doors 1
Light Oak Wooden High Chairs - Patio 1
Light Oak Wooden High Chairs - Patio 1
Light Oak Wooden High Chairs - Patio 1
Light Oak Wooden High Chairs - Patio 1
Light Oak Wooden High Chairs - Patio 1
Light Oak Wooden High Chairs - Patio 1
Light Oak Wooden High Chairs - Patio 1
Light Oak Wooden High Chairs - Patio 1
Light Oak Wooden High Chairs - Patio 1
Light Oak Wooden High Chairs - Patio 1
General Sewer Machine 1
Gasoline Utility Pump 1
3/8 Cordless drill 1
Gasoline Welder/Generator 1
Bench Grinder 1
Paint Shaker 1
4" Side Grinder 1
Wood and Metal benches - Used Outside 6
Yellow Caution Signs 3
Swivel Stools - Patio 12
Umbrella - Patio 9
Tables 36" x 36" - Patio 20
Tables 36" Round - Patio 17
Tables 60" Round - ▇▇▇▇▇ ▇
▇▇▇▇▇▇ ▇▇" ▇ ▇▇" - ▇▇▇▇▇ ▇▇
Chairs - Patio 348
Trash Receptacles 28
Benches - w/back 28
Benches w/o back 10
Planters 26" Dia. 16" 10
Planters 36" Dia. 30
Planters 48" Dia 2
Hammer Drill 1
Sawzall 1
Sewer Machine K375 1
▇▇▇▇▇ Folding Chairs with Beige Seals 16
Stanchions 44
Stereo Cassette Deck 1
Wooden Easels 11
Black & White Microphone 1
Bruched Aluminum Condenser Microphone 1
Black & Silver Microphone Stands 2
Wooden Podium 1
6" Folding Tables 11
Portable TV-VCR Center 1
Control Unit
VCR
Monitor
35mm Camera Body 1
35-70 mm Lens 1
Automatic Flash 1
Portable Audio Center 1
Control Unit
Satellite Unit
Mixer
Tape Deck
Display Cases 6
Video Camera 1
AC Adapter 1
Video Cam Tripod 1
Monitor #1 1
Computer Hard Drive 1
Printer 1
Keyboard 1
Monitor #2 1
Keyboard 1
Computer Hard Drive 1
Printer 1
Silver Signholders 11
Silver Shopping Bag Holders 2
Gift Certificate Booth 1
Gift Certificate File Cabinet 1
Black Ropes 31
3mm Camera 1
Acrylic Entry Form Box 1
Metal Leaflet Racks 3
Black Leather Handcuff Cases 16
Blue & ▇▇▇▇ Wheel Chair 2
Black Metal Flashlight 6
Black Leather Belt Velcro 20
Silver ▇▇▇▇▇ & Wesson Handcuffs 5
Handcuffs 5
Alert Weather Radio 1
Black Land Camera With Strap 1
Black Leather Belt Velcro 12
Tan Metal employee Lockers 2
Supply Locker - Tan 1
Green & White Wheel Chair 1
Dry Board 1
Speaker Microphone 6
Audio Hailer - Megaphone 1
M-100 Control Station 1
Mobile Unit Radio 1
R-100 repeater 1
Telephone Interconnect w/ Speed Dial 1
Black Land Camera w/strap 1
Alpha Safety Hard Hats (Marked A-F) 2
Binoculars 1
Battery Tester 1
▇▇▇▇▇▇ ▇-▇▇▇ ▇
▇▇▇▇▇▇ ▇-▇▇▇ ▇
▇▇▇▇▇▇ ▇-▇▇▇ 1
Radius P-110 1
Radius P-110 1
Radius P-110 1
Radius P-110 1
Radius P-110 1
Radius P-110 1
Radius P-110 1
Radius P-110 1
Radius P-110 1
Radius P-110 1
Radius P-110 1
Radius P-110 1
Radius P-110 1
Radius P-110 1
Radius P-110 1
Radius P-110 1
Radius P-110 1
Radius P-110 1
SP-50 1
SP-50 1
SP-50 1
SP-50 1
Binoculars 2
Light Bar 1
Radius P-110 1
Radius P-110 1
Radius P-110 1
Radius P-110 1
Radius P-110 1
Radius P-110 1
Radius P-110 1
Radius P-110 1
▇▇▇▇▇ 2-Drawer File Cabinet 1
72" x 38" Wooden Credenza 1
72" x 38" Wooden Credenza 1
Round Wood & Brass Table Lamp with Shade 1
96" x 42" Wooden Conference Table/Glass Top 1
Wooden 4 Drawer Office Module 1
52" x 36" ▇▇▇▇▇ 4' ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇" x 30" 1
▇▇▇▇▇ 2-Drawer File Cabinet 1
30" x 48" Table with Hutch 1
52" x 36" Beige 4-Drawer File Cabinet 1
18" x 52" Beige 4-Drawer File Cabinet 1
Sunrise Print 1
4 drawer file cabinet - ▇▇▇▇▇ 1
Sunrise Print 1
24" Square Wooden End Table 1
Wood & Metal Roll Away Drop-leaf table 1
64" Long wooden ▇▇▇▇▇▇▇ Table 1
Wooden Credenza 1
52" x 36" ▇▇▇▇▇ 4-Drawer File Cabinet 2
30" Square Wooden End Table 1
20" x 27" 2-Drawer Fire Proof Cabinet 1
72" x 36" Wooden Desk 1
60" x 30" Wood & Metal Desk 1
72" x 36" Wooden Desk 1
17" x 77" Wooden Credenza 1
L-Shaped Wooden Desk 1
72" x 36" Wooden Desk 1
▇▇▇▇ Fabric/Wood Swivel Chair 1
▇▇▇▇ Fabric/Wood Swivel Chair 1
▇▇▇▇ Fabric Swivel Chair 1
▇▇▇▇ Fabric Swivel Chair w/Arms 1
IBM Wheelwriter 5 1
IBM Wheelwriter System Writer 1
▇▇▇▇ Fabric & Wood Chair 1
▇▇▇▇ Fabric & Wood Chair 1
Calculator 1
Security Director's Desk 1
IBM Wheelwriter System Writer 1
▇▇▇▇ Fabric Swivel Chair w/Arms 1
Cash Drawer 1
Gift Certificate Machine 1
▇▇▇▇ Fabric & Wood Chair 1
▇▇▇▇ Fabric Swivel Chair w/ Arms 1
Black Swivel Armless Chair 1
Microwave 1
▇▇▇▇ Fabric & Wood Chair 1
Wooden Desk 1
▇▇▇▇ Fabric & Wood Chair 1
▇▇▇▇ Fabric/Wood Swivel Chair 1
▇▇▇▇ Fabric/Wood Swivel Chair 1
▇▇▇▇ Fabric & Wood Chair 1
▇▇▇▇ Fabric/Wood Swivel Chair 1
▇▇▇▇ Fabric/Wood Swivel Chair 1
▇▇▇▇ Fabric & Wood Chair 1
▇▇▇▇ Fabric/Wood Swivel Chair 1
▇▇▇▇ Fabric/Wood Swivel Chair 1
▇▇▇▇ Fabric Swivel Chair w/Arms 1
▇▇▇▇ Fabric/Wood Swivel Chair 1
▇▇▇▇ Fabric/Wood Swivel Chair 1
▇▇▇▇ Fabric & Wood Chair 1
▇▇▇▇ Fabric Swivel Chair w/Arms 1
▇▇▇▇ Fabric/Wood Swivel Chair 1
▇▇▇▇ Fabric Swivel Chair 1
▇▇▇▇ Fabric/Wood Swivel Chair 1
▇▇▇▇ Fabric/Wood Swivel Chair 1
▇▇▇▇ Fabric & Wood Chair 1
Map 1
Postage System 1
Postage Machine 1
Postage Scale 5 Lb 1
Scale Stand 1
Aerial Mall Print 1
Hearing Impaired Phone 1
27 1/2" x 40" Wall Print 1
35" x 25" Seascape Print 1
32" x 34" Wall Print 1
34" x 24" Grand Canyon Print 1
24" x 30" Wall Print 1
27 1/2" x 40" Wall Print 1
27 1/2" x 40" Wall Print 1
33" x 27" Wall Print 1
5 drawer file cabinet - ▇▇▇▇ 3
▇▇▇▇ 4-drawer File Cabinet 1
Black Long Arm Desk Lamp 3
▇▇▇▇ 4-Drawer file cabinet 1
▇▇▇▇ 4-Drawer file cabinet 1
▇▇▇▇ 4-Drawer file cabinet 1
3 drawer file cabinet-▇▇▇▇ (under fax machine) 1
Calculator 1
Coffee Maker 1
Electric Labeler 1
Laser Jet Printer 1
Coke Machine 1
Paper Shredder 1
Laser Printer 1
Chair 2
▇▇▇▇ Wall Hang - 48" x 72" 1
Blue & White Calculator 1
Ram Telephone System 1
Module Furniture 1
42" x 52" ▇▇▇▇▇▇▇ print 1
Calculator 1
▇▇▇▇ Table 24" x 60" 1
Computer System 1
▇▇▇▇/Black Swivel Chair w/Arms 1
Chair 1
Computer System 1
Laser Printer 1
Module Furniture
Black Swivel Chair 1
Module Furniture
4 Drawer ▇▇▇▇ Filing Cabinet - legal 1
Computer System
Computer hard Drive 1
Monitor 1
Keyboard 1
HP Laser jet Printer 1
Secretarial Chairs 2
Used Ford Motor Security Truck 1
Used Xerox Copy Machine 1
EXHIBIT "C"
PENDING LITIGATION
Tenant Related
Huggy Stuff: Declared bankruptcy. Under the reorganization plan they will
pay back approximately 14% of their total debt. We are receiving payment
on a monthly basis.
Athens Potato Pizazz: Placed in default for nonpayment of rent (January
through April, 1998. They were locked out of their space on April 8, 1998.
Their leasing company removed the last of their equipment on September 25,
1998.
Frullati Cafe: They are still in default for not paying the correct amount
of rent each month and nonpayment of the 1996 lump sum ▇▇▇▇▇▇▇▇.
Pictures Plus: We placed a Landlord's Lien on the inventory and fixtures
for nonpayment of rent. The inventory was auctioned off November 4th. We
received $167.75.
CUSTOMER RELATED
▇▇▇▇▇▇ Batch: Alleges she fell into the pit and hurt her head. Insurance
has paid $3,981 to date with an additional $3,519 in reserve.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇: Claimant walked through mall main glass door cutting
chest, knees and elbow. Insurance has not paid anything to date but has
$4,210 in reserve.
EXHIBIT "D"
FORM OF NOTICE TO TENANT
As of _______ ____, 1999
_________________________
_________________________
_________________________
Attention: _____________
Re: Your lease ("Lease") in North Hills Mall;
located in North Richland Hills, Texas (the "Property")
-------------------------------------------------------
Dear Tenant:
We are pleased to announce that, as of the date of this letter, NORTH
HILLS MALL ASSOCIATES, an Illinois general partnership ("Former Owner"),
has sold its interest in the Property, the landlord's interest in the Lease
and your current security deposit balance under the Lease to NORTH HILLS,
LTD., a Texas limited partnership, and THE KEST CHILDREN'S TRUST
(collectively, "New Owner"); and New Owner has assumed and agreed to
perform all of the landlord's obligations under the Lease on and after such
date. Accordingly, all of your obligations under the Lease on and after
such date (including your obligation to pay rent) shall be performable to
and for the benefit of New Owner, and its successors and assigns; and all
of the obligations of the landlord under the Lease on and after such date
shall be the binding obligations of New Owner, and its successors and
assigns.
Unless and until you are otherwise notified in writing by New Owner,
the address of New Owner for all purposes under your Lease (including the
giving of any notices provided for in your Lease) is as follows:
North Hills, Ltd.
c/o ▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: North Hills Malls/Manager
Until you are notified to the contrary by New Owner, the Property
will be managed by __________________ ("Manager") which may be contacted at
(____________________, and as in the past, your rental payment is due and
payable on the first of each month. Except as otherwise notified by New
Owner, rent should be made payable to "___________________" and sent to
Manager at the following address: ______________________________.
Please feel free to call _______________, ________________ of New
Owner at (________________________ if you have any questions.
Very truly yours,
FORMER OWNER:
NORTH HILLS MALL ASSOCIATES,
an Illinois general partnership
By: JMB Income Properties, Ltd.-X,
an Illinois limited partnership
By: JMB Realty Corporation,
a Delaware corporation,
Its General Partner
By:_________________________
Name:_______________________
Title:________________________
NEW OWNER:
NORTH HILLS, LTD.,
a Texas limited partnership
▇▇▇▇ ▇▇▇▇▇▇▇ & CO., INC.,
a Texas corporation,
its general partner
By:_________________________
Name:_______________________
Title:________________________
THE KEST CHILDREN'S TRUST
By: _________________________
▇▇▇▇▇▇▇ ▇▇▇▇, Trustee
EXHIBIT "E-1"
FORM OF TENANT ESTOPPEL CERTIFICATE
North Hills Mall Associates
c/o JMB Realty Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇ ▇▇▇▇▇▇▇
North Hills, Ltd., and
The Kest Children's Trust
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
Re: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇;
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
Ladies and Gentlemen:
We hereby certify that with respect to our lease, as amended (the
"Lease"), and as the Lease is more particularly described in the attached
Schedule "A" which is hereby incorporated (the "Schedule"):
1. The Lease constitutes the entire agreement between the
undersigned and the landlord thereunder with respect to the subject matter
thereof and the Lease has not been modified, amended or supplemented in any
way except by the amendments or other agreements described in the Schedule
and attached on Exhibit "A".
2. The summary of the terms of the Lease contained in the Schedule
is true and correct.
3. The undersigned has not assigned or entered into a sublease for
any portion of the premises covered by the Lease and no person or firm
other than the undersigned or its employees is in possession of such
premises or any portion thereof.
4. To the knowledge of the undersigned, (a) the undersigned has no
claim, off-set or counterclaim against the landlord thereunder, and (b) the
landlord thereunder is not in default.
5. The undersigned has no option, right of first refusal or
otherwise to purchase the Property or any portion thereof or any interest
therein and the only interest of the undersigned in the Property is that of
a tenant pursuant to the terms of the Lease.
6. The undersigned is not the subject of any bankruptcy,
insolvency, debtor's relief, reorganization, receivership or other similar
proceedings.
7. The person(s) executing this Certificate has (have) the power
and authority to execute and deliver this Certificate on behalf of the
tenant under the Lease.
8. The undersigned hereby ratifies and confirms the Lease and the
tenancy created pursuant to the terms thereof and upon consummation of sale
and notice thereof, agrees to accept the buyer or its assignee as the
landlord thereunder.
We understand that the landlord under the Lease, its lenders, buyers
and their lenders and their respective successors and assigns will rely on
this Certificate.
Very truly yours,
________________________________________
Name of Tenant
________________________________________
Signature
________________________________________
Date
SCHEDULE "A"
Summary of Lease Terms
Name of Tenant: ________________________________________________________
Lease Date: ____________________________________________________________
Amendment Dates, Separate Agreements, if any: __________________________
Suite/Space No. _______________; Rentable Square Footage: __________
Lease Expiration: _____________
Option(s) to Extend: _____________________________________________________
Option(s) to Expand: ______________________________________________________
Option to Terminate: ______________________________________________________
Monthly Base Rent: $_______________;
perating Costs/Real Property Taxes: $_______________;
Total Monthly Rent: $_______________
Tenant's Percentage Share: ___________%;
Additional Rent: ___________
Percentage Rent: __________%
Breakpoint: __________
(10) Security Deposit: __________
(11) Rent Paid Through Date: __________
Lease Guarantor(s): ____________________________________________________
Tenant Improvements or other allowances (i.e., rent reduction, free rent)
due Tenant: ___________________________________________________________
Comments: _____________________________________________________________
EXHIBIT "E-2"
FORM OF SELLER TENANT CERTIFICATE
________________, 1999
TO:North Hills, Ltd., and The Kest Children's Trust
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
Re: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇;
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
Ladies and Gentlemen:
This Certificate is being delivered to you pursuant to
subparagraph 4E of that certain agreement (the "Purchase Agreement")
captioned "PURCHASE AGREEMENT", dated as of June __, 1999, between NORTH
HILLS MALL ASSOCIATES, an Illinois general partnership ("Seller"), and
NORTH HILLS, LTD., a Texas limited partnership, and THE KEST CHILDREN'S
TRUST (collectively, "Buyer").
Seller hereby certifies to you, your lenders and your respective
successors and assigns, that, "to Seller's knowledge" (as defined in the
Purchase Agreement), none of the following statements is inaccurate in any
material respect, except as provided in the lease, as amended (the "Lease")
more particularly described in the attached Schedule "A" which is hereby
incorporated (the "Schedule"):
The Lease constitutes the entire agreement between __________, a
_______ ("Tenant") and the landlord thereunder with respect to the subject
matter thereof and the Lease has not been modified, amended or supplemented
in any way except by the amendments or other agreements described in the
Schedule.
The summary of the terms of the Lease contained in the Schedule is
true and correct.
Except as provided in the Schedule, Tenant has not assigned or
entered into a sublease for any portion of the premises covered by the
Lease and no person or firm other than Tenant or its employees is in
possession of such premises or any portion thereof.
(a) The Tenant is not in default under the Lease, (b) Tenant has no
claim, off-set or counterclaim against the landlord thereunder, and (c) the
landlord thereunder is not in default.
Tenant has no option, right of first refusal or otherwise to purchase
the Property or any portion thereof or any interest therein and the only
interest of the undersigned in the Property is that of a tenant pursuant to
the terms of the Lease.
Tenant is not the subject of any bankruptcy, insolvency, debtor's
relief, reorganization, receivership or other similar proceedings.
This Certificate is subject to the limitations set forth in the
Purchase Agreement, including the limitations set forth in subparagraph 7C
and subparagraph 9B thereof. Notwithstanding anything to the contrary
herein, this Certificate shall not be effective unless and until the
"Closing" (as defined in the Purchase Agreement) occurs.
SELLER:
NORTH HILLS MALL ASSOCIATES,
an Illinois general partnership
By: JMB Income Properties, Ltd.-X,
an Illinois limited partnership
By: JMB Realty Corporation,
a Delaware corporation,
Its General Partner
By: _________________________
Name:_________________________
Title:_________________________
SCHEDULE "A"
Summary of Lease Terms
Name of Tenant: ________________________________________________________
Lease Date: ____________________________________________________________
Amendment Dates, Separate Agreements, if any: __________________________
Suite/Space No. ________________;Rentable Square Footage: __________
Lease Expiration: _____________
Option(s) to Extend: _____________________________________________________
Option(s) to Expand: _____________________________________________________
Option to Terminate:______________________________________________________
Monthly Base Rent: $_______________;
Operating Costs/Real Property Taxes: $_______________;
Total Monthly Rent: $_______________
Tenant's Percentage Share: ___________%;
Additional Rent: ___________
Percentage Rent: __________%
Breakpoint: __________
(10) Security Deposit: __________
(11) Rent Paid Through Date: __________
(12) Lease Guarantor(s): ________________________________________________
(13) Tenant Improvements or other allowances (i.e., rent reduction,
free rent) due Tenant:
_____________________________________________________________________
(14) Comments: __________________________________________________________
EXHIBIT "E-3"
FORM OF REA ESTOPPEL CERTIFICATE
REA ESTOPPEL CERTIFICATE
______________ __, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Associates
c/o JMB Realty Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇ ▇▇▇▇▇▇▇
Re: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇;
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ (the "Property")
--------------------------------------------
Ladies and Gentlemen:
The undersigned hereby certifies to you, your lender(s), any
prospective purchaser of all of part of your interest in the Property, and
your successors and assigns that, except as listed on Schedule "A" attached
hereto and made a part hereof:
1. That certain "Operating Agreement" dated July 11, 1978,
originally by and among Federated Stores Realty, Inc., Federated Department
Stores, Inc. and R. E. ▇▇▇ & Company and ▇▇▇▇▇ Street Realty Company, and
recorded in Volume 6526 at Page 745 of the Deed Records of Tarrant County,
Texas, as amended (collectively, the "REA") constitute the only agreement
or understanding between North Hills Mall Associates, an Illinois general
partnership, and the undersigned with respect to the matters contained
therein, and the REA has not been modified, changed, altered or amended in
any respect, except as described in this Paragraph 1.
2. The REA is in full force and effect and constitute a legally
valid instrument, binding and enforceable against the undersigned in
accordance with its terms.
3. To the best knowledge of the undersigned, no other party
subject to the REA is in default in any manner in the performance of any of
the terms, covenants, conditions or provisions of the REA.
4. The undersigned has not made advance payment of any charges
payable under the REA.
The individual executing this certificate on behalf of the
undersigned has been duly authorized to make the statements herein
contained and to execute and deliver this certificate.
The undersigned agrees that this letter shall inure to the benefit of
and is being relied upon by you, your lender(s), any prospective purchaser
of all of part of your interest in the Property, and your successors and
assigns.
Very truly yours,
_________________________________,
a ________________________________
By: __________________________
Name: __________________________
Title:__________________________
SCHEDULE "A"
Exceptions to REA Estoppel Certificate
EXHIBIT "F"
FORM OF SPECIAL WARRANTY DEED
STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS
COUNTY OF TARRANT THAT:
NORTH HILLS MALL ASSOCIATES, an Illinois general partnership ("Grantor"),
for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00), and
other good and valuable consideration paid by ___________________,
a _________________________ ("Grantee"), the receipt and sufficiency of
which are hereby acknowledged and confessed, subject to the exceptions,
liens, encumbrances, terms and provisions hereinafter set forth and
described, has GRANTED, BARGAINED, SOLD and CONVEYED, and by these presents
does hereby GRANT, BARGAIN, SELL and CONVEY, unto Grantee all of that
certain lot, tract or parcel of land situated in the City of North Richland
Hills, Tarrant County, Texas, and being more particularly described in
Exhibit "A" attached hereto and incorporated herein by reference, together
with all improvements located on such land (such land and improvements
being collectively referred to as the "Property").
This conveyance is made by Grantor and accepted by Grantee subject to all
covenants, conditions, easements, encumbrances and all other matters of
record and all other matters that can be determined by a visual inspection
or a complete and accurate survey of the Property (the "Permitted
Exceptions").
TO HAVE AND TO HOLD the Property, subject to the Permitted Exceptions, unto
Grantee, and its successors and assigns forever, and Grantor does hereby
bind itself, and its successors and assigns, to WARRANT and FOREVER DEFEND
all and singular the Property unto Grantee, and its successors and assigns,
against every person whomsoever lawfully claiming or to claim the same or
any part thereof, by, through or under Grantor, but not otherwise.
GRANTEE ACKNOWLEDGES THAT THE CONVEYANCE OF THE PROPERTY IS SPECIFICALLY
MADE "AS-IS" AND "WHERE-IS," WITHOUT ANY REPRESENTATIONS OR WARRANTIES
EXPRESS OR IMPLIED (EXCEPT FOR THE SPECIAL WARRANTY OF TITLE CONTAINED IN
THIS DEED), INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF FITNESS
FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY OR ANY OTHER WARRANTIES
WHATSOEVER CONTAINED IN OR CREATED BY THE UNIFORM COMMERCIAL CODE OR
OTHERWISE.
EXECUTED on ___________________, 1999.
GRANTOR:
NORTH HILLS MALL ASSOCIATES,
an Illinois general partnership
By: JMB Income Properties, Ltd.-X,
an Illinois limited partnership
By: JMB Realty Corporation,
a Delaware corporation,
Its General Partner
By: _________________________
Name: _________________________
Title:_________________________
STATE OF )
S.S. )
COUNTY OF )
On _____________, before me, __________, a Notary Public in and for
said County and State, personally appeared __________, personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me
that he/she executed the same in his/her authorized capacity and that by
his/her signature on the instrument the person, or the entity upon behalf
of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature:
SPACE FOR NOTARY SEAL OR STAMP
EXHIBIT "A"
LEGAL DESCRIPTION
EXHIBIT "G"
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
▇▇▇▇ OF SALE, ASSIGNMENT AND ASSUMPTION
(▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇; ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇)
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
the undersigned, NORTH HILLS MALL ASSOCIATES, an Illinois general
partnership ("Seller"), hereby sells, transfers, assigns and conveys to
NORTH HILLS, LTD., a Texas limited partnership and THE KEST CHILDREN'S
TRUST (collectively, "Buyer"), the following:
1. Personal Property. All right, title and interest of Seller in
and to those items of tangible personal property ("Personal Property")
described in Exhibit "A" attached hereto and made a part hereof and
relating to the "Property", as hereinafter defined.
2. Leases. All right, title and interest of Seller in and to all
leases ("Leases") relating to the Property and described in Exhibit "B"
attached.
3. Service Contracts. All right, title and interest of Seller in
and to all contracts, service agreements and other operating agreements
("Service Contracts") relating to the Property and described in Exhibit "C"
attached hereto.
4. Intangible Property. All right, title and interest of Seller,
to the extent assignable, in and to all contract rights, agreements, tenant
lists, governmental permits, licenses and approvals, advertising material,
telephone exchange numbers and the name "North Hills Mall" (collectively,
the "Intangible Property") directly relating to the Property.
This ▇▇▇▇ of Sale, Assignment and Assumption is given pursuant to
that certain Purchase Agreement ("Agreement") dated as of June ____, 1999,
between the Seller and Buyer, respecting the purchase and sale of that
certain shopping center commonly known as the "North Hills Mall" located in
the North Richland Hills, Texas (the "Property"). The Agreement provides
for, among other things, the assignment provided for herein. The
covenants, agreements, and limitations (including, but not limited to, the
limitations of liability provided in subparagraph 9B of the Agreement)
provided in the Agreement with respect to the property conveyed hereunder
are hereby incorporated herein by this reference as if herein set out in
full and shall inure to the benefit of and shall be binding upon Seller and
Buyer, and their respective successors and assigns.
The property and rights conveyed hereunder are is conveyed "as is",
without warranty or representation, except as expressly provided in (and
subject to the limitations of) the Agreement.
DATED: As of _______________, 1999.
NORTH HILLS MALL ASSOCIATES,
an Illinois general partnership
By: JMB Income Properties, Ltd.-X,
an Illinois limited partnership
By: JMB Realty Corporation,
a Delaware corporation,
Its General Partner
By:___________________________
Name:_________________________
Title:________________________
"Seller"
BUYER'S ASSUMPTION
(▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇; ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇)
As of this ____ day of _______________, 1999, Buyer hereby accepts
the foregoing assignment of Leases, Service Agreements and other contracts
and agreements assigned hereby and agrees to assume and discharge, in
accordance with the terms thereof, all of the burdens and obligations of
Seller thereunder, to the extent the same arise or accrue from and after
the date hereof.
BUYER:
NORTH HILLS, LTD.,
a Texas limited partnership
▇▇▇▇ ▇▇▇▇▇▇▇ & CO., INC.,
a Texas corporation,
its general partner
By: _________________________
Name: _________________________
Title:_________________________
THE KEST CHILDREN'S TRUST
By:_________________________
▇▇▇▇▇▇▇ ▇▇▇▇, Trustee
Exhibit "A"
To ▇▇▇▇ of Sale, Assignment and Assumption
Attach List of Personal Property
Exhibit "B"
To ▇▇▇▇ of Sale, Assignment and Assumption
Attach List of Leases
Exhibit "C"
To ▇▇▇▇ of Sale, Assignment and Assumption
Attach List of Service Contracts
EXHIBIT "H"
EXCEPTIONS TO SELLER'S REPRESENTATIONS AND WARRANTIES
None.
EXHIBIT "I"
LIST OF LEASES
Accents & Gifts
Lease Agreement between JMB Income Properties and Siebes Enterprises, Inc.
dated August 17, 1992
Assignment of Lease between Siebes Enterprises, Inc. and JMB Income
Properties, Ltd. dated December 29, 1997
Guaranty of Lease between ▇▇▇▇▇ ▇▇▇▇▇▇▇ and JMB Income Properties, Ltd.
dated December 29, 1997
Alladin Jewelers
Lease Agreement between North Hills Mall Associates and Prince & Princess
Jewelers, Inc. dated May 5, 1997
The Arcadium
Short Term Lease for Kiosk, Pushcart or In-Line Spaced between North Hills
Mall Associates and The Arcadium dated April 23, 1999.
AT&T Tridom
Roof License Agreement between JMB Income Properties, Ltd. and AT&T Tridom,
Inc. dated January 16, 1995
▇▇▇▇▇▇ Bookseller
Lease Agreement between JMB Income Properties and ▇. ▇▇▇▇▇▇ Booksellers
dated May 4, 1990
Addendum to Lease between JMB Income Properties, Ltd. and ▇. ▇▇▇▇▇▇
Booksellers, Inc., dated 5/4/96
Bath & Body Works
Lease Agreement between JMB Income Properties, Ltd. and Bath & Body Works,
Inc. dated June 20, 1996
Bag'n Baggage
Lease Agreement between JMB Income Properties, Ltd. and Bag'n Baggage dated
June 14, 1995
Beauty/Hair Concepts
Short Term Lease for Kiosk, Pushcart or In-Line Spaced between North Hills
Mall Associates and Beauty/Hair Concepts dated May 25, 1999.
Butterfields Etc.
Short Term Lease for Kiosk, Pushcart or In-Line Spaced between North Hills
Mall Associates and Butterfields Etc. dated December 15, 1998
Candy Barrel
Lease Agreement between JMB Income Properties, Ltd. and Candy Barrel dated
February 15, 1996
Car-Lene Research
Lease Agreement between JMB Income Properties and ▇▇▇▇▇▇▇ Research of
Texas, Inc. dated January 12, 1996
Chinese Gourmet Express
Lease Agreement between North Hills Mall Associates and Chinese Gourmet
Express, Inc. dated February 24, 1997
Chick-Fil-A
Lease Agreement between JMB Income Properties and Chick-Fil-A, Inc. dated
February 20, 1992
Amendment No. One To Lease between North Hills Mall Associates and Chick-
Fil-A, Inc. dated December 3, 1996
Claire's Boutique
Lease Agreement between JMB Income Properties, Ltd. and Claire's Boutiques,
Inc. dated ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇▇▇ Casuals
Lease Agreement between Federated Stores Realty and Contempo Casuals, Inc.
dated April 5, 1983
Lease Extension and Amendment Agreement between JMB Income Properties, Ltd.
and Contempo Casuals, Inc. dated October 3, 1995
Second Amendment to Lease between JMB Income Properties and Contempo
Casuals, Inc. dated April 11, 1996
Third Lease Extension Agreement between North Hills Mall Associates and The
Wet Seal, Inc. (successor in interest of Contempo Casuals, Inc. dated
August 13, 1997
Assignment and Assumption Agreement between Ermine Trading Corporation and
Contempo Casuals c/o The Wet Seal, Inc., dated 6/29/95.
Fourth Lease Extension Agreement between North Hills Mall Associates and
The Wet Seal, Inc. dated June 26, 1998
Convecash (ATM)
Lease Agreement between JMB Income and Convecash, Inc., dated February 7,
1996
Critter Connection
Short Term Lease For Kiosk, Pushcart or In-Line Space between North Hills
Mall Associates and Critter Connection dated June 10, 1998
Deck the Walls
Lease Agreement between North Hills Mall Associates and Mr. Michael
Tanvaviriya & ▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Deck the Walls) dated October 15,
1996
Partial Rent Abatement Agreement between North Hills Mall and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ dated September 1997
Extension of Rent Abatement Agreement dated September 9, 1998.
Eight Ball Billiards
Short Term Lease for Kiosk, Pushcart or In-Line Spaced between North Hills
Mall Associates and Eight Ball Billiards dated May 27, 1999. (location #1)
Short Term Lease for Kiosk, Pushcart or In-Line Spaced between North Hills
Mall Associates and Eight Ball Billiards dated May 28, 1999. (location #2)
Embroid It
Short-term Lease for Kiosk, Pushcart or In-Line Space between North Hills
Mall and The Embroid It Company dated January 3, 1997
European Nook
Short Term Lease for Kiosk, Pushcart or In-Line Spaced between North Hills
Mall Associates and European Nook dated December 8, 1998.
Fancy Lady
Short Term Lease for Kiosk, Pushcart or In-Line Spaced between North Hills
Mall Associates and Fancy Lady dated November 30, 1998.
Fantasy Entertainment
Short Term Lease for Kiosk, Pushcart or In-Line Spaced between North Hills
Mall Associates and Fantasy Entertainment dated June 11, 1999.
It's Fix
Short Term Lease for Kiosk, Pushcart or In-Line Spaced between North Hills
Mall Associates and It's Fix December 1, 1998
Fieldhouse Sports
Lease Agreement between JMB Income Properties, Ltd. and PRO-MAC1
(Fieldhouse) dated August 5, 1991
Partial Rent Abatement Agreement between North Hills Mall Associates and
PRO-MAC1 d/b/a Fieldhouse dated June 19, 1996
Partial Rent Abatement Agreement between North Hills Mall Associates and
PRO-MAC1 d/b/a Fieldhouse dated July 3, 1997
Partial Rent Agreement dated 7/24/98.
Extension of Rent Abatement Agreement between North Hills Mall Associates
and Fieldhouse Sports dated January 28, 1999
Foot Locker
Lease Agreement between JMB Income Properties and ▇▇▇▇▇▇ Shoe Corporation
dated June 12, 1989
Frullati
Lease Agreement between North Hills Mall Associates and Frullati NHM, Inc.
dated August 1, 1996
Fun Gum Machine Company
Short Term Lease for Kiosk, Pushcart or In-Line Spaced between North Hills
Mall Associates and Fun Gum Machine Company dated January 21, 1999.
(location #1)
Short Term Lease for Kiosk, Pushcart or In-Line Spaced between North Hills
Mall Associates and Fun Gum Machine Company dated January 21, 1999.
(location #2)
Gadzooks
Lease Agreement between JMB Income Properties, Ltd. and Titan Enterprises,
Inc. (Gadzooks) dated July 1, 1992
The Gap
Lease Agreement between JMB Income Properties, Ltd. and The Gap, Inc. dated
August 17, 1992
Amendment No. One to Lease between North Hills Mall Associates and The Gap,
Inc. dated May 28, 1997
Lease Amendment between The Gap and North Hills Mall Associates dated June
24, 1998
Termination Letter from GAP terminating their lease
Glamour Shots
Lease Agreement between North Hills Mall Associates and Dallas Glamour
Shots dated September 16, 1996
Lease Extension Agreement between North Hills Mall Associates and Dallas
G.S. dated April 1, 1999.
▇▇▇▇▇▇ Jewelers
Lease Agreement between North Hills Mall Associates and ▇▇▇▇ Delaware
(▇▇▇▇▇▇ Jewelers) dated May 24, 1996
General Nutrition Center
Lease Agreement between JMB Income Properties and General Nutrition
Corporation dated September 21, 1993
Amy's Hallmark / ▇▇▇▇▇▇▇ Card Shops / Hallmark Specialty Retail Group
Lease Agreement between JMB Income Properties and ▇▇▇▇▇▇▇'▇ Card Shop dated
May 18, 1992
Sublease Agreement between ▇▇▇▇▇▇▇ Card Shops, Inc. and ▇▇▇▇▇▇ ▇. ▇▇▇ and
▇▇▇▇▇▇▇▇ ▇. ▇▇▇ d/b/a ▇▇▇'▇ Hallmark Shop dated March 10, 1993
Letter evidencing that ▇▇▇▇▇▇▇ Card Shops has changed its name to Hallmark
Specialty Retail Group dated August 6, 1998
House of Cards
Short Term Lease for Kiosk, Pushcart or In-Line Spaced between North Hills
Mall Associates and House of Cards dated February 22, 1999.
▇▇▇▇▇▇ Network System
Roof License Agreement between JMB Income Properties, Ltd. and ▇▇▇▇▇▇
Network Systems, Inc. dated March 20, 1996
Image Dynamics (Photo Booth)
Short Term Lease for Kiosk, Pushcart or In-Line Spaced between North Hills
Mall Associates and Image Dynamics dated September 3, 1998.
▇▇▇ Bee Toys
Lease Agreement between JMB Income Properties and ▇▇▇-Bee Toys dated
February 16, 1990
Lease Amendment between Toy & Hobby and JMB Income Properties dated April
14, 1994
Lease Extension Agreement between North Hills Mall Associates and K B Toy
of Texas dated April 20, 1998
Lease Extension Agreement between North Hills Mall Associates and KB Toy of
Texas, Inc. dated January 31, 1999.
Kiddie Koncepts
Short Term Lease for Kiosk, Pushcart or In-Line Spaced between North Hills
Mall Associates and Kiddie Koncepts dated January 26, 1999.
The Limited
Lease Agreement between JMB Income Properties and The Limited Stores, Inc.
dated January 29, 1992
Luby's Cafeteria
Lease Agreement between JMB Income Properties and Luby's Cafeterias, Inc.
dated August 30, 1994
Metabolife 356
Short-term Lease for Kiosk, Pushcart or In-Line Space between North Hill
Mall Associates and Metabolife 356 dated August 27, 1998
Nails Etc.
Short Term Lease for Kiosk, Pushcart or In-Line Spaced between North Hills
Mall Associates and Nails Etc. dated November 3, 1998.
New Gold Palace
Short-term Lease for Kiosk, Pushcart or In-Line Space between North Hill
Mall Associates and New Gold Palace dated May 24, 1999.
Part of Texas
Short Term Lease for Kiosk, Pushcart or In-Line Spaced between North Hills
Mall Associates and Part of Texas dated January 29, 1999.
Payless ShoeSource
Lease Agreement between JMB Income Properties and Volume Shoe Corporation
dated February 27, 1987
Lease Extension Agreement between North Hills Mall Associates and Payless
ShoeSource dated September 4, 1997
Lease Extension Agreement between North Hills Mall Associates and Payless
ShoeSource dated February 22, 1999.
Pearle Vision
Lease Agreement between JMB Income Properties and Pearle Vision dated July
12, 1995
Pretzels Etc.
Short-term Lease for Kiosk, Pushcart or In-Line Space between North Hills
Mall Associates and Pretzels Etc. dated July 27, 1998
Radio Shack
Lease Agreement between JMB Income Properties and Tandy Corporation (Radio
Shack) dated May 28, 1992
Regis Hairstylists
Lease Agreement between JMB Income Properties and Regis Corporation dated
January 13, 1992
▇▇▇ ▇▇▇▇▇ (Musicland)
Lease Agreement between JMB Income Properties and The Musicland Group dated
April 6, 1987
Sbarro
Lease Agreement between JMB Income Properties, Ltd. and Sbarro dated
February 11, 1992
Assignment and Assumption of Lease dated January 3, 1994
Shoe Box
Lease Agreement between JMB Income Properties, ltd. and S & J Shoes dated
June 22, 1993
Assignment and Assumption of Lease dated 1/15/98
Summit Stationers
Lease Agreement between JMB Income Properties and American Greetings
Corporation dated April 30, 1985
Lease Amendment between JMB Income and American Greetings Corporation dated
June 30, 1989
Amendment No. Four to Lease between north Hills mall Associates and
American Greeting corporation dated February 4, 1997
Lease Amendment No. One to Lease between JMB Income Properties and American
Greetings Corporation dated June 21, 1995
Lease Extension Agreement between JMB Income Properties and American
Greetings Corporation dated February 29, 1996
Lease Extension Agreement between North Hills Mall Associates and American
Greetings dated February 18, 1998
Lease extension Agreement between North Hills Mall Associates and American
Greeting corporation dated February 28, 1999.
Sunbeam Creations
Short-term Lease For Kiosk, Pushcart or In-Line Space between North Hills
Mall Associates and Sunbeam Creations dated February 17, 1998
Extension of Term of Short Term Lease between North Hills Mall Associates
and ▇▇▇▇▇▇ ▇▇▇▇▇▇ d/b/a Sunbeam Creations dated December 30, 1998.
Sunglass Hut
Lease Agreement between JMB Income Properties, Ltd. and Sunglass Hut
Trading Corporation dated April 24, 1995
Things Remembered
Lease Agreement between JMB Income Properties and Things Remembered dated
February 20, 1996
Tis the Season
Short Term Lease for Kiosk, Pushcart or In-Line Spaced between North Hills
Mall Associates and Tis The Season dated January 14, 1999.
Trade Secret
Lease Agreement between North Hills Mall Associates and Trade Secret dated
June 19, 1996
Victoria's Secret Stores
Lease Agreement between JMB Income Properties, Ltd. and Victoria's Secret
Stores dated February 27, 1992
▇▇▇▇▇▇ Books
Lease Agreement between North Hills Mall Associates and ▇▇▇▇▇▇ Book Company
dated August 2, 1996
Wemakit
Short Term Lease for Kiosk, Pushcart or In-Line Spaced between North Hills
Mall Associates and Wemakit dated January 29, 1999.
What's New
Short Term Lease For Kiosk, Pushcart or In-Line Space between North Hills
Mall Associates and ▇▇ ▇▇▇ dated May 13, 1998
Short Term Lease for Kiosk, Pushcart or In-Line Spaced between North Hills
Mall Associates and What's New dated May 21, 1999.
World Chiropractic Group
Short Term Lease for Kiosk, Pushcart or In-Line Spaced between North Hills
Mall Associates and World Chiropractic dated June 10, 1999.
Zales
Lease Agreement between JMB Income Properties and Zales dated April 1, 1992
EXHIBIT "J"
SERVICE CONTRACTS
Imperial Services Trap service Agreement dated February 6, 1997
Security Link Ameritech Alarm Services dated February 6, 1997
▇▇▇▇▇ Services Independent Contractor continuing Service Agreement dated
January 3, 1997
Musor Music of Texas Lease Agreement dated December 1, 1993
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ d/b/a Master Sweep Independent Contractor continuing
Service Agreement dated February 6, 1997
Laldlaw (Trinity) Waste Systems Customer Service Agreement dated April 3,
1995
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Associates of Texas Independent contractor continuing
Service Agreement dated December 22, 1998
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Associates of Texas Independent contractor continuing
Service Agreement dated December 22, 1998
Felco Auto Lease dated February 2, 1998
Metering and Data Specialties continuing Service Agreement dated December
21, 1994
Center Services Independent Contractor continuing Service Agreement dated
December 22, 1998
Aramark Uniform Services Independent Contractor continuing Service
Agreement dated February 4, 1998
McKesson Water Products Customer Lease Agreement dated February 10, 1998
AT&T Property Manager contract dated 1/20/96
AT&T Security contract dated 1/23/96
PageNet Service Lease Agreement dated August 1, 1996
PageNet Service/Lease Agreement dated July 29, 1996
Rancotyp-Postalia, Inc. Rental Agreement dated April 15, 1997
Infinitel Public Telephone Space Lease Agreement dated January 29, 1997,
amended September 30, 1997.
$1.29 Cleaners Independent Contractor Service Agreement dated June 1, 1996
3M Media Outdoor Display Advertising (Outdoor Systems Advertising)
Agreement dated September 22, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ Photo & Train Agreement dated February 10, 1998.
Independent Contractor Continuing Service Agreement between North Hills
Mall Associates and Center Services Inc. dated December 22, 1999.
Independent Contractor Continuing Service Agreement between North Hills
Mall Associates and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ dated December 22, 1998.
EXHIBIT "K"
ENVIRONMENTAL REPORTS
Environmental Report prepared by PSI Environmental Services, dated
August 4, 1989.
Phase I Environmental Site Assessment prepared by Furgo Environmental,
Inc., dated November 20, 1995.
