EXHIBIT 10.3
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PURCHASE AGREEMENT
(Bristol Mall; Bristol, Virginia)
THIS AGREEMENT is made and entered into effective as of the _____ day
of January, 1999 (the "Effective Date"), by and between BRISTOL MALL
ASSOCIATES, an Illinois general partnership (hereinafter called "Seller"),
and BRISTOL MALL, L.L.C., an Alabama limited liability company (hereinafter
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 Bristol, County of Washington, State of Virginia, consisting
primarily of a shopping center sometimes known as "Bristol 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. Subject to the terms and conditions
hereinafter set forth, Seller shall sell to Buyer, and Buyer shall purchase
from Seller, the following:
(a) That certain tract or parcel of land situated in the City of
Bristol, County of Washington, State of Virginia, more particularly
described in Exhibit "A" attached hereto and made a part hereof, together
with all covenants, restrictions, easements, rights-of-way and other rights
and appurtenances appertaining to or for the use or benefit of such
property, including but not limited to any right, title and interest of
Seller in and to adjacent streets, alleys or rights-of-way (collectively,
the "Land"); the term "Land" as used herein shall mean and include all real
property and interests therein (including but not limited to the shopping
center parcel and any department store parcels, shopping center out-parcels
or peripheral land) owned by Seller and forming a part of, used in
connection with or available for the expansion of that certain shopping
center known as Bristol Mall;
(b) The buildings, structures, fixtures, equipment and other
improvements affixed to or located upon the Land, excluding fixtures and
equipment owned by tenants (collectively, the "Improvements");
(c) Any and all of Seller's right, title and interest in and to all
tangible personal property located on, in or upon or used in connection
with the operation of the Land or the Improvements, as more particularly
described in Exhibit "B" attached hereto and made a part hereof, including,
without limitation, all of Seller's right, title and interest in and to any
and all automobiles, trucks, vans, motor vehicles, equipment, appliances,
furniture, furnishings, planters, decorations, carpeting, draperies and
curtains, tools and supplies, and other items of personal property of any
and every kind owned or leased by Seller (excluding cash and any software),
located on, in or upon or used exclusively in connection with the operation
of the Land and the Improvements (including but not limited to any seasonal
decorations or other such personal property stored off-site, to the extent
owned by Seller), but excluding all tangible personal property owned by
tenants (collectively, the "Personal Property");
(d) any and all of Seller's right, title and interest in and to the
leases, licenses and occupancy agreements covering all or any portion of
the "Real Property" (as hereinafter defined), and any and all guarantees
thereof (collectively, the "Leases"), together with all rents and other
sums due thereunder, but only to the extent arising or accruing after the
"Closing Date" (as hereinafter defined) (collectively, the "Rents") and any
and all security deposits in Seller's possession or control in connection
therewith (collectively, the "Security Deposits"); and
(e) any and all of Seller's right, title and interest in and to (i)
all contracts and service agreements relating to the Land, Improvements or
Personal Property, as more particularly described in Exhibit "J" attached
hereto and made a part hereof, (collectively, the "Service Contracts"),
(ii) all warranties and guarantees relating to the Improvements or the
Personal Property, to the extent assignable, and (iii) all permits,
certificates of occupancy, licenses, approvals and authorizations issued by
any governmental authority in connection with the "Property" (as
hereinafter defined), and (iv) all names, trade names, trademarks, logos
and other similar rights used solely in connection with the Real Property,
including, but not limited to, the name "Bristol Mall", and (v) all plans,
specifications, drawings, manuals and other records relating to the
Improvements or the Personal Property, to the extent assignable (the
property described in this clause (e) being collectively referred to as the
"Intangible Property").
The Land and the Improvements are hereinafter collectively referred
to as the "Real Property". The Land, the Improvements, the Personal
Property, the Leases and the Intangible Property are hereinafter
collectively referred to as the "Property".
2. PURCHASE PRICE. The purchase price (the "Purchase Price") for
the Property shall be the sum of $24,577,000.
3. PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid to
Seller by Buyer as follows:
A. ESCROW DEPOSIT. Within two (2) business days after the
Effective Date, Buyer shall deliver the sum of Two Hundred Fifty Thousand
Dollars ($250,000) (together with all interest thereon, the "Escrow
Deposit") to Chicago Title Company, ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 by
cashier's check or 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, or (iii) such other manner as
may be reasonably agreed to by Seller and 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 and by the prorations and credits
specified herein, shall be paid in cash on the Closing Date (the amount to
be paid under this subparagraph B being herein called the "Closing
Payment").
▇. ▇▇▇▇▇ PAYMENT CREDIT. Pursuant to that certain Third Amendment
of Lease dated as of December 14, 1995, by and between Seller, as landlord,
and Sears, ▇▇▇▇▇▇▇ and Co., a New York corporation ("Sears"), as tenant,
Seller is obligated to make a payment to Sears in the amount of Two Hundred
Fifty Thousand Dollars ($250,000) (the "Sears Payment"). Concurrently with
the consummation of the transactions contemplated by this Agreement, Buyer
shall assume any and all of Seller's obligations to Sears with respect to
the Sears Payment and in consideration of such assumption, Seller shall
provide Buyer with a proration credit at closing against the Purchase Price
in an amount equal to One Hundred Seventy Five Thousand Dollars ($175,000)
(the "Sears Credit"). In this connection, notwithstanding anything to the
contrary in this Agreement, Buyer will indemnify, defend, and hold Seller,
its constituent partners and each of their officers, directors, employees,
shareholders, partners, members, affiliates and agents harmless from and
against any and all damage, loss, cost or expense (including, without
limitation, reasonable attorneys fees) in any way relating to the Sears
Payment. Buyer hereby acknowledges and agrees that the foregoing
obligation shall survive the closing and shall not be subject to the
limitation of liability set forth in paragraph 9.B.
D. CARMIKE CINEMAS CAM HOLDBACK. As used in this Agreement, the
term "CAM Obligations" means the applicable tenant's obligation to pay or
reimburse the owner of the Property for taxes, insurance costs and common
area maintenance costs pursuant to the terms of such tenant's lease at the
Property. In connection with Buyer's due diligence review of the Property,
Seller has disclosed to Buyer that Carmike Cinemas, Inc. ("Carmike") has
alleged that Seller has over-billed Carmike for Carmike's CAM Obligations
for the period prior to the date hereof and continuing to and including the
Closing Date (the "CAM Dispute"). Seller has informed Buyer that to
Seller's actual knowledge, the amount that Seller may have over-billed
Carmike for Carmike's CAM Obligations for the period prior to the date
hereof and continuing to and including the Closing Date does not reasonably
exceed the sum of Eighty-Eight Thousand Dollars ($88,000.00) (the "CAM
Dispute Cap"); provided, however, that nothing contained in this Agreement
shall be construed as an admission on the part of Seller that Seller has
over-billed Carmike for Carmike's CAM Obligations for the period prior to
the date hereof and continuing to and including the Closing Date. As it is
unlikely that Seller and Carmike will resolve the CAM Dispute prior to the
Closing Date, if such dispute has not been settled by Seller on or before
the Closing Date, then concurrently with the consummation of the
transactions contemplated by this Agreement, Buyer shall assume Seller's
potential liability with respect to the CAM Dispute, if any, in an amount
up to but not to exceed the CAM Dispute Cap and, in consideration of such
assumption, (i) Buyer and Seller shall jointly instruct Escrow Holder to
holdback from Seller in escrow a portion of the Purchase Price in an amount
equal to Eighty Eight Thousand Dollars ($88,000) (hereinafter, together
with all interest earned thereon, referred to as the "Carmike Holdback
Amount"). In addition, whether or not the CAM Dispute is settled prior to
the Closing Date, Seller will indemnify, defend, and hold Buyer harmless
from and against up to a maximum of One Hundred and Thirty Thousand Dollars
($130,000) (the "Carmike Reimbursement Amount") of the aggregate amount of
all of Buyer's losses, costs and expenses incurred as a result of any
reduction in Carmike's CAM Obligations for the period after the Closing
Date due to any mutual written determination or written agreement between
Buyer and Carmike that Carmike's CAM Obligations for the period from and
after the Closing Date will be calculated and paid in any manner other than
the manner that resulted in the CAM Dispute (the "Future CAM Reductions").
Buyer and Seller hereby agree that to the extent that Buyer enters into a
written settlement agreement with Carmike in final and complete settlement
of both the CAM Dispute and the Future CAM Reductions (which settlement
agreement shall include a release of Seller from any and all liability in
connection with the CAM Dispute and the Future CAM Reductions, but shall be
upon such other terms and conditions as Buyer may determine in Buyer's sole
and absolute discretion) (a "Carmike Settlement Agreement"), Buyer shall
provide a copy of such Carmike Settlement Agreement to Seller and Escrow
Holder and (a) an amount equal to up to the entire Carmike Holdback Amount
shall be made available to Buyer by Escrow Holder for application towards
any payments owing from Buyer to Carmike with respect to the CAM Dispute
pursuant to the terms of the Carmike Settlement Agreement, and (b) Seller
shall directly reimburse to Buyer, within thirty (30) days after receipt of
written notice from Buyer, an amount equal to up to the Carmike
Reimbursement Amount on account of Future CAM Reductions, the amount of
such reimbursement to be determined by applying a "cap rate" of ten percent
(10%) to the annual amount of Future CAM Reductions, if any, set forth in
the Settlement Agreement subject to the maximum of the Carmike
Reimbursement Amount for the aggregate of all such Future CAM Reductions
(or, if Buyer and Carmike settle the dispute regarding the amount of Future
CAM Reductions by agreeing to a stipulated amount, Seller shall directly
reimburse to Buyer, within thirty (30) days after receipt of written notice
from Buyer, for the amount of such stipulated amount, subject to a maximum
stipulated amount of One Hundred Thirty Thousand Dollars ($130,000));
provided, however, the following shall apply: (x) to the extent that Buyer
and Carmike shall fail to enter into a Carmike Settlement Agreement on or
before August 31, 1999 (the "Settlement Deadline"), Escrow Holder shall pay
the entire Carmike Holdback Amount to Buyer and thereafter Seller shall
have no obligation to reimburse Buyer for any Future CAM Reductions; (y) to
the extent that Buyer and Carmike have entered into a Carmike Settlement
Agreement on or before the Settlement Deadline and (i) the Carmike Holdback
Amount exceeds the payments owing from Buyer to Carmike with respect to the
CAM Dispute, such excess shall be paid to Buyer by Escrow Holder and
credited towards Seller's obligation to pay Buyer the Future CAM Reductions
as provided above, if any, or (ii) to the extent that the Carmike Holdback
Amount exceeds the payments owing from Buyer to Carmike with respect to the
CAM Dispute and the Future CAM Reductions, such excess shall be paid to
Seller by Escrow Holder. Seller and Buyer hereby agree to jointly execute
and deliver to Escrow Holder any escrow instructions reasonably necessary
to effectuate the provisions of this paragraph 3.D. In this connection,
notwithstanding anything to the contrary in this Agreement, (1) Buyer will
indemnify, defend, and hold Seller, its constituent partners and each of
their officers, directors, employees, shareholders, partners, members,
affiliates and agents harmless from and against any and all liabilities,
damages, losses, costs or expenses (including, without limitation,
reasonable attorneys' fees) in any way relating to (a) the CAM Dispute up
to but not to exceed the CAM Dispute Cap and (b) the Future CAM Reduction
(subject to Seller's reimbursement obligations hereunder); and (2) Seller
will indemnify, defend, and hold Buyer and its constituent members,
managers, agents and affiliates and its or their officers, directors,
shareholders, members, managers, agents servants and employees harmless
from and against any and all liabilities, damages, losses, costs or
expenses (including, without limitation, reasonable attorneys' fees) in any
way relating to (i) Seller's failure to reimburse Buyer for Future CAM
Reductions in accordance with the provisions of this paragraph 3.D, and
(ii) the CAM Dispute to the extent that the aggregate of such liability,
damages, losses, costs and expenses in any way relating to such CAM Dispute
exceeds the CAM Dispute Cap; provided further, however, that Buyer shall
also be responsible for and shall indemnify Seller against any such
liabilities, damages, losses, costs and expenses that relate to the CAM
Dispute and that are in excess of the CAM Dispute Cap if (but only if)
Buyer enters into a Carmike Settlement Agreement that requires payment to
Carmike of an amount in excess of the CAM Dispute Cap and that was not
approved in advance by Seller. Except as provided in the immediate
preceding sentence, Buyer shall not have any liability or obligation to pay
any liabilities, damages, losses, costs or expenses that exceed in the
aggregate the CAM Dispute Cap and that arise from or as a result of the CAM
Dispute. Subject to the indemnification obligations set forth in this
paragraph 3.D, each party shall be solely responsible for its own
attorneys' fees in connection with the CAM Dispute and/or the Future CAM
Reductions. Seller and Buyer further agree that Escrow Holder shall, upon
the closing of the transactions contemplated by this Agreement, transfer
the Carmike Holdback Amount to an escrow account at its offices in the
State of Virginia and thereafter hold such amounts in such escrow account
until disbursement in accordance with the terms of this Agreement, and that
in any action or proceedings between or among Seller, Buyer and/or Escrow
Holder relating to the CAM Dispute, the Carmike Holdback Amount or the
Future CAM Reductions shall be held in a federal or state court having
jurisdiction in Bristol, Virginia, and not elsewhere (and Seller and Buyer
do hereby consent to the jurisdiction and venue of the federal and state
courts having jurisdiction in Bristol, Virginia). Buyer and Seller each
hereby acknowledge and agree that the foregoing obligations shall survive
the closing and shall not be subject to the limitations of liability set
forth in paragraph 9.B.
E. PAPPAGALLO PAYMENT CREDIT. The parties acknowledge that
Daverett, Inc. d/b/a Pappagallo ("Pappagallo") has ceased to operate its
business in its premises at the Property leased by it under that certain
lease agreement dated April 15, 1991, by and between Seller, as landlord,
and Pappagallo, as tenant (the "Pappagallo Lease"). In this connection,
Seller agrees to provide Buyer with a proration credit at Closing in the
amount of One Hundred Three Thousand Seven Hundred Seventy Three and No/100
Dollars ($103,773.00) (the "Pappagallo Credit"). Buyer and Seller agree
that the Pappagallo Credit shall be credited to Buyer against the Purchase
Price at Closing. The parties acknowledge and agree that (i) the
Pappagallo Credit is a proration adjustment to the Purchase Price to fully
and completely compensate Buyer (as between Buyer and Seller, but without
prejudice to any claims against Pappagallo) for Pappagallo's cessation of
operations as a tenant on the lower level of the enclosed mall building at
the Property, and (ii) the rents and other charges payable by Pappagallo
pursuant to the terms of the Pappagallo Lease shall be prorated in
accordance with Section 5.D. of this Agreement without regard to the
application of the Pappagallo Credit. Accordingly, the parties acknowledge
and agree that: (a) Buyer shall have the right to receive and retain all
rents and other charges payable by Pappagallo pursuant to the terms of the
Pappagallo Lease for the period on and after the Closing Date without any
reduction, offset or other adjustment as the result of the Pappagallo
Credit, and (b) Seller shall have the right to receive and retain the rents
and other charges payable under the terms of the Pappagallo Lease for the
period prior to the Closing Date without acceleration of any such rents or
other charges, but Seller shall not be entitled to any reimbursement of the
Pappagallo Credit and shall not enter into any settlement agreement or take
or consent to any other action that would affect Pappagallo's obligation to
pay Buyer rent and other charges pursuant to the terms of the Pappagallo
Lease for the period on and after the Closing Date; provided, however, that
to the extent that Pappagallo's cessation operations in its premises at the
Property is in violation of the Pappagallo Lease, Buyer hereby agrees to
undertake reasonable collection efforts against Pappagallo with respect to
such cessation of operations, and to the extent that Buyer collects any
amounts from Pappagallo which are in excess of the Pappagallo Credit and
Buyer's reasonable, actual, out of pocket collection costs, Buyer shall
promptly pay such excess amounts to Seller, such payment to Seller not to
exceed an amount equal to the Pappagallo Credit; provided, further,
however, notwithstanding anything to the contrary provided herein, it is
understood and agreed that Buyer shall not be obligated to pursue any
litigation or other proceedings against Pappagallo and that Buyer shall
have the right in its sole and absolute discretion to settle all claims
against Pappagallo for any amount that Buyer deems advisable, including,
but not limited to, an amount equal to or less than the Pappagallo Credit.
Seller shall not be entitled to any rents, charges or other sums collected
from Pappagallo by Buyer on or after the Closing Date unless and until the
aggregate of all such rents, charges and other sums collected from
Pappagallo by Buyer on or after the Closing Date exceeds an amount equal to
the sum of the Pappagallo Credit plus all of Buyer's reasonable, actual
collection costs, in which event Seller shall be entitled to receive from
Buyer an amount equal to the lesser of: (1) the amount of such rents,
charges and other sums collected from Pappagallo on and after the Closing
Date in excess of the sum of the Pappagallo Credit plus all of Buyer's
reasonable, actual collection costs, or (2) an amount equal to the
Pappagallo Credit. Seller and Buyer each hereby acknowledge and agree that
the provisions of this paragraph shall survive the closing and shall not be
subject to the limitations of liability set forth in paragraph 9.B.
4. CONDITIONS PRECEDENT.
A. TITLE MATTERS.
(1) TITLE REPORT. Seller has previously delivered to Buyer a title
insurance commitment issued by Chicago Title Insurance Company (which
company, in its capacity as title insurer hereunder, is herein called the
"Title Company") for a standard 1992 ALTA Form B Owner's Policy of Title
Insurance covering the Property, with an Owner's Comprehensive Endorsement
1A Modified, an ALTA Form 3.1 Modified Zoning Endorsement (Completed
Structure with Parking), a Contiguity of Parcels Endorsement, a Survey
Endorsement and an Access Endorsement (Land Abuts Street) (the "Title
Commitment"). Seller has ordered (and shall obtain during the "Title
Review Period," as hereinafter defined) a plat of survey of the Property
made in accordance with Table A of the Minimum Standard Detail Requirements
for ALTA/ACSM Land Title Surveys (1997) (excluding Item Nos. 5, 7b and 12)
prepared by ▇▇▇▇▇▇▇▇ Surveyors (the "Survey"). If Buyer shall fail to
deliver a "Title Objection Notice" (as hereinafter defined) setting forth
those title and survey matters to which Buyer objects on or before
January 11, 1999 (the "Title Review Period"), Buyer shall be deemed to have
approved the exceptions to title shown on the Title Commitment and the
matters disclosed on the Survey.
(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. Unless Buyer gives written notice
that it disapproves any such additional exceptions to title or survey
matters, stating the exceptions or matters so disapproved, on or before
five (5) business days after receipt of written notice thereof, Buyer shall
be deemed to have approved such additional title or survey 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 paragraphs 4.A(1) or 4.A(2), as
applicable. Upon receipt by Seller of a Title Objection Notice given in a
timely manner, then Seller shall have five (5) business days from receipt
of such Title Objection Notice (or from the date of Buyer's deemed
disapproval as aforesaid) within which to notify Buyer in writing (the
"Seller's Title Response") as to each 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) or affirmative coverage from the Title
Company insuring over such disapproved matter; provided, however, Seller
shall have no liability if for any reason, after electing under (ii) above
and exercising a good faith effort (with Seller having no obligation to
expend any sums in connection therewith), 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 four (4) business days from receipt of the
Seller's Title Response (or from the date of Seller's deemed election as
aforesaid) within which to notify Seller in writing (the "Buyer's Title
Response") either that (x) Buyer revokes its disapproval and will proceed
with the purchase of the Property 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
and, except for those provisions hereof which survive termination, this
Agreement shall thereupon terminate). 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 as set forth above. All matters
set forth on the Title Commitment which are not timely objected to by Buyer
in accordance with this paragraph 4.A, are herein called the "Permitted
Exceptions". The term "Permitted Exceptions" shall additionally include
(i) real estate taxes and assessments not yet due and payable, (ii) any
title or survey matters objected to by Buyer, which objections are
subsequently waived in writing by Buyer, and (iii) any title or survey
matters objected to by Buyer, which objections are cured to Buyer's
satisfaction. Notwithstanding anything to the contrary contained herein,
at "Closing" (as hereinafter defined) 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, assumed or suffered
to exist 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. In addition, if Buyer seeks to obtain an extended coverage
"Owner's Policy" (as defined below), Seller shall reasonably attempt to
provide Title Company at the closing of the transactions contemplated by
this Agreement (the "Closing") with such evidence as reasonably required by
Title Company to issue such extended coverage (with Seller having no
obligation to expend any sums in connection therewith). As used herein,
the term "Final Title Deadline" shall mean the expiration date of the Title
Review Period; provided, however, that if Buyer timely delivers a Title
Objection Notice to Seller, then the term Final Title Deadline shall mean
the last day of the period of time provided hereunder for Seller to deliver
the Seller's Title Response to Buyer; provided further, however, that if
Seller timely delivers the Seller's Title Response to Buyer, then the term
Final Title Deadline shall mean the last day of the period of time provided
hereunder for Buyer to deliver the Buyer's Title Response to Seller.
(4) TITLE CONTINGENCY. On or before the Final Title Deadline, (a)
Buyer shall attempt to obtain a commitment for, or a pro-forma owner's
title insurance policy in the form of, an extended coverage 1992 ALTA Form
B Owner's Policy of Title Insurance covering the Property, issued by the
Title Company in the State of Virginia, in the face amount of the Purchase
Price, which commitment or pro-forma shall (i) show title to the Property
to be vested of record in Buyer, (ii) show the Permitted Exceptions to be
the only exceptions to title, and (iii) obligate Title Company, upon the
satisfaction of its requirements therefore, (a) to delete all general
exceptions and printed exceptions which appear in the standard 1992 ALTA
Form B Owner's Policy of Title Insurance issued by the Title Company in the
State of Virginia, and (b) to issue an Owner's Comprehensive Endorsement 1A
Modified, an ALTA Form 3.1 Modified Zoning Endorsement (Completed Structure
with Parking), a Contiguity of Parcels Endorsement (if applicable), a
Survey Endorsement, an Access Endorsement (Land Abuts Street) and such
other endorsements other as may be required by Buyer (and the Title Company
shall agree to issue) (the "Final Commitment"), and (b) Buyer shall attempt
to obtain a plat of survey of the Property prepared by ▇▇▇▇▇▇▇▇ Surveyors
and made in accordance with the survey specifications listed on Exhibit "L"
attached hereto (the "Final Survey"). If, and only if, Buyer is able to
obtain the Final Commitment and the Final Survey on or before the Final
Title Deadline, a condition precedent to Buyer's obligation to purchase the
Property shall be the willingness of Title Company to issue to Buyer on the
Closing Date an extended coverage owner's title insurance policy ("Owner's
Policy") in the form of the Final Commitment. However, if Buyer is unable
to obtain the Final Commitment on or before the Final Title Deadline and
Buyer timely elects to proceed with the purchase of the Property, (i) Buyer
shall be obligated to accept title to the Property, as insured pursuant to
a 1992 ALTA Form B Owner's Policy of Title Insurance issued by Title
Company in the State of Virginia, in the face amount of the Purchase Price,
showing title to the Property to be vested of record in Buyer, subject only
to the Permitted Exceptions and to such other exceptions (if any) and
together with the benefit of the coverages and endorsements, as provided in
the last version of the title commitment or pro forma title policy provided
to Buyer by Title Company prior to the Final Title Deadline (the "Owner's
Policy"), and (ii) the issuance of such Owner's Policy to Buyer on the
Closing Date as provided in this sentence shall be a condition precedent to
Buyer's obligation to purchase the Property.
B. DUE DILIGENCE REVIEWS. Except as expressly provided in
paragraphs 4.E and 4.F below, Buyer has performed and completed all of
Buyer's due diligence examinations, reviews and inspections of all matters
pertaining to the purchase of the Property, including all existing leasing,
service contract, physical, environmental and compliance matters and
conditions respecting the Property (other than title and survey matters
which shall be governed by the provisions of paragraph 4.A above). In this
connection, Buyer hereby acknowledges and agrees that the Purchase Price
has been reduced to reflect Buyer's due diligence determinations with
respect to the physical condition of the Improvements, including but not
limited to, the condition of the roof and building HVAC systems. During
the term of this Agreement, Seller shall continue to provide Buyer with
reasonable access to the Property upon reasonable advance notice and Buyer
shall have reasonable access to Seller's operating books and records for
the Property (to the extent in Seller's possession and not previously
delivered to Buyer). In connection with the foregoing, Buyer shall not
cause damage, loss, cost or expense to Seller or the Property and shall not
unreasonably 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 conduct 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, which consent may be withheld in Seller's sole and
absolute discretion (and shall in all events promptly restore the Property
to its prior condition and repair thereafter). Buyer shall have the right,
in the ordinary course of business, to contact any tenant of the Property
without Seller's express written consent and contact any governmental
authority having jurisdiction over the Property without Seller's express
written consent; provided, however, that (i) Buyer shall be obligated to
keep Seller reasonably informed with respect to the subject matter of all
such contacts, including, but not limited to promptly providing Seller with
a copy of any and all information, documents or correspondence which Buyer
receives from any tenant or governmental authority, (ii) except as provided
in subparagraphs E, F, G and H below, Buyer shall not be permitted to (a)
deliver any correspondence, documents, notices to any tenant or
governmental authority, or (b) conduct any negotiations with any tenant,
governmental authority or party under any reciprocal easement agreement
affecting the Property (but Buyer shall have the right to obtain
confirmation of the zoning of the Property and other due diligence
matters), and (iii) if this Agreement is terminated, Buyer shall
immediately cease any and all such contacts. 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. Except for that
certain site assessment of the Property dated June 8, 1992, prepared by
Professional Services Industries, Inc. (the "Professional Services Report")
which is not currently in Seller's possession or control, Buyer hereby
acknowledges that Seller has previously delivered to Buyer copies of the
documents and items listed on Exhibit "K". Seller warrants that to its
actual knowledge, Exhibit "K" includes, and Seller has delivered to Buyer,
all environmental studies and reports affecting the Property that are in
Seller's possession or control. Buyer hereby acknowledges that Seller has
not yet obtained a copy of the Professional Services Report. To the extent
that Seller obtains a copy of the Professional Services Report (Seller
hereby agreeing to use reasonable efforts to obtain such report), Seller
shall promptly deliver a copy of such report to Buyer. In the event of
termination hereunder, Buyer shall return all documents and other materials
furnished by Seller hereunder. Buyer shall keep all information or data
received or discovered in connection with any of the inspections, reviews
or examinations strictly confidential in accordance with the terms of that
certain Confidentiality Agreement dated July 14, 1998, by and between
▇▇▇▇▇▇ Realty Management, Inc. and Hamptons International (the
"Confidentiality 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 paragraph 7.B below
which are not otherwise permitted or contemplated by the terms of this
Agreement, or in the event any of such representations and warranties are
not true and correct in all material respects on the Closing Date, then
Buyer shall have the right to terminate this Agreement. Buyer shall have
the option to waive the condition precedent set forth in this paragraph 4.C
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 paragraph 7.C below
which are not permitted or contemplated by the terms of this Agreement, or
in the event any of such representations and warranties are not true and
correct in all material respects on the Closing Date, then Seller shall
have the right to terminate this Agreement. Seller shall have the option
to waive the condition precedent set forth in this paragraph 4.D by written
notice to Buyer. In the event of such waiver, such condition shall be
deemed satisfied. Except in the case of Buyer's delivery of a Title
Objection Notice or Termination Notice to Seller, (i) this paragraph 4.D is
the only condition precedent under paragraph 4 of this Agreement that
affects Seller's obligation to sell the Property, and (ii) this paragraph
4.D is not a condition precedent to Buyer's obligation to purchase the
Property.
E. TENANT ESTOPPEL CERTIFICATES. Receipt of estoppel certificates
("Tenant Estoppel Certificates") dated not more than 60 days prior to the
Closing Date from (i) the anchor tenants listed on Exhibit "C" attached
hereto and made a part hereof (the "Anchor Tenants"), (ii) the tenants in
the mall shop premises at the Property listed on Exhibit "D" attached
hereto and made a part hereof (the "Required Tenants"), and (iii) from a
sufficient number of the balance of the tenants in the mall shop premises
at the Property having lease terms in excess of one (1) year so that
estoppel certificates from such tenants shall be received with respect to
not less than 75% of the net rentable square feet of space covered by
leases in the mall shop premises at the Property having lease terms in
excess of one (1) year in effect as of the date hereof, is a condition
precedent to Buyer's obligation to purchase the Property hereunder. Each
Tenant Estoppel Certificate shall be substantially in the form of Exhibit
"E-1" attached hereto and made a part hereof or in form otherwise
reasonably acceptable to Buyer; provided, however, that (a) in order to
help resolve the "Outstanding Due Diligence Issues" (as defined below)
listed on Exhibit "M-1" attached hereto and made a part hereof, Buyer and
Seller shall, within five (5) days after the Effective Date, reasonably
agree on modifications to the form of the Tenant Estoppel Certificate that
will be delivered to each Anchor Tenant, and (b) if the applicable Tenant
Estoppel Certificate received from any major national tenant is
substantially in the standard form otherwise required by such tenant or in
the form prescribed by the Lease for such tenant, then such form of Tenant
Estoppel Certificate shall be deemed acceptable to Buyer provided that:
(i) such Tenant Estoppel Certificate is consistent with the terms and
provisions of the applicable Lease heretofore provided by Seller to Buyer
and confirms that to such tenant's knowledge, there does not exist any
default by either the landlord or the tenant thereunder, and (ii) Buyer is
satisfied with respect to all Outstanding Due Diligence Issues as provided
under this Agreement. 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. A Tenant
Estoppel Certificate, whether or not in the form of Exhibit "E-1", will be
deemed reasonably acceptable to Buyer if such certificate contains the
following information: such certificate confirms that the fixed monthly
rent, security deposit and termination date for such tenant are as set
forth in the applicable Leases listed on Exhibit "I" for such tenant; that
no rent has been paid more than one month in advance; that the lease is in
full force and effect and has not been amended or modified except for
amendments and modifications listed in such letter and listed on Exhibit
"I"; that the tenant has no right of extension other than as set forth in
the lease; and that all work to be performed by Landlord has been performed
and that the tenant has no knowledge of any landlord default. Seller's
sole obligation hereunder shall be to utilize reasonable efforts to obtain
such Tenant Estoppel Certificates from all tenants of the Property (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).
Buyer shall have the option to waive the condition precedent set forth
herein by notice to Seller (whereupon such condition will be deemed
satisfied). If on or before the Closing Date, such tenant estoppel
condition set forth in this paragraph 4.E is not satisfied (or waived as
aforesaid), the obligations of Seller to sell, and Buyer to purchase, the
Property hereunder shall terminate. Seller hereby acknowledges that
Buyer's determination of whether information or omissions contained in any
Tenant Estoppel Certificate are unacceptable will be reasonable if such
information or omissions are inconsistent with the provisions of the
applicable Lease and relate to rent or other key provisions of such Lease
which have an economic effect or if such information indicates that
landlord is in material default of such Lease. In this connection, Seller
shall promptly deliver to Buyer the originals of any Tenant Estoppel
Certificates received by Seller.
F. OUTSTANDING DUE DILIGENCE. Although Buyer has previously
completed all of its due diligence examinations, reviews and inspections of
all matters pertaining to the purchase of the Property (other than title
and survey matters which shall be governed by the provisions of paragraph
4.A above), Buyer's previous due diligence review has disclosed certain
outstanding due diligence issues which have not been resolved as of the
Effective Date (the "Outstanding Due Diligence Issues"). The Outstanding
Due Diligence Issues are more particularly described on Exhibit "M-1"
attached hereto and made a part hereof. Buyer shall have until 5:00 p.m.
(Central time) on the earlier to occur (the "Final Review Period") of (i)
the date which is five (5) days after Buyer's receipt of written notice
from Seller indicating that Seller has satisfied or otherwise resolved each
of the due diligence issues set forth on Exhibit "M-1" attached hereto and
made a part hereof (a "Due Diligence Satisfaction Notice"), or (ii) the
date which is thirty (30) days after the Effective Date, within which to
perform and complete Buyer's due diligence examinations, reviews and
inspections with respect to the Outstanding Due Diligence Issues. During
the Final Review Period, Buyer and Seller shall take the respective actions
described on Exhibit "M-2" attached hereto and made a part hereof. If, on
or before the expiration of the Final Review 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 paragraph 4.F. If, however, on or before the expiration
of the Final Review 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 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 Final Review Period, Buyer shall fail to have
delivered the Termination Notice to Seller, Buyer shall be deemed to have
elected to proceed with the acquisition of the Property, and thereafter,
Buyer shall have no further right to terminate this Agreement pursuant to
this paragraph 4.F. To the extent that Buyer timely delivers the Approval
Notice to Seller (or is deemed to have elected to proceed with the
acquisition of the Property), such election or deemed election shall not
constitute a waiver of any other condition precedent to Buyer's obligation
to purchase the Property set forth herein. Notwithstanding anything in
this Agreement to the contrary, the satisfaction (or waiver) of each of the
conditions set forth on Exhibit "M-3" attached hereto and made a part
hereof is a condition precedent to Buyer's obligation to purchase the
Property hereunder; provided, however, if each of the conditions precedent
set forth on Exhibit "M-3" are not satisfied (or waived as aforesaid) on or
before the Closing Date, the obligations of Seller to sell, and Buyer to
purchase, the Property hereunder shall terminate.
▇. ▇▇▇ ESTOPPEL CERTIFICATES. Buyer hereby acknowledges that the
receipt of an estoppel certificate with respect to that certain Reciprocal
Easement Agreement (the "Kroger REA") dated July 1, 1997, by and between
CZ-Bristol Associates I, L.P., a Tennessee limited partnership ("CZ-I") and
CZ Bristol Associates II, L.P., a Tennessee limited partnership ("CZ-II")
and Seller, substantially in the form of Exhibit "E-2" attached hereto and
made a part hereof (the "REA Estoppel Certificate"), is not a condition
precedent to Buyer's obligation to purchase the Property hereunder.
However, Seller shall reasonably cooperate with Buyer's efforts to attempt
to obtain the REA Estoppel Certificate from each of CZ-I and CZ-II with
respect to the Kroger REA (and for the purposes of this subparagraph F,
Seller shall be deemed to have reasonably cooperated with Buyer's efforts
if Seller delivers such REA Estoppel Certificate to each of CZ-I and CZ-II
and makes a good faith effort to obtain the return thereof on or before the
Closing Date). In this connection, Seller shall promptly deliver to Buyer
the original REA Estoppel Certificate if received by Seller. Although
Buyer's receipt of an estoppel certificate with respect to the Kroger REA
is not a condition precedent to Buyer's obligation to purchase the Property
hereunder, if Buyer receives an REA Estoppel Certificate from CZ-I and CZ-
II with respect to the Kroger REA on or before the Closing Date and such
certificate indicates that Seller is in material default of the Kroger REA
and if such material default is not capable of being cured by the owner of
the Property, then Buyer shall have four (4) business days from receipt of
such REA Estoppel Certificate within which to notify Seller in writing that
is electing to terminate this Agreement (and thereupon the Escrow Deposit
shall be delivered to Buyer and, except for those provisions hereof which
survive termination, this Agreement shall thereupon terminate); provided,
however, that Buyer's failure to deliver written notification of
termination within such period shall be deemed to be an election to proceed
with the acquisition of the Property, and thereafter, Buyer shall have no
further right to terminate this Agreement pursuant to this paragraph 4.F.
For the purposes of the preceding sentence, a material default of the
Kroger REA will be deemed to be capable of being cured if such material
default is with respect to a monetary obligation, or an on-going
maintenance obligation, of the owner of the Property under the Kroger REA.
If the REA Estoppel Certificate indicates that Seller is in material
default of the Kroger REA with respect to a monetary obligation, the amount
required to be paid with respect to such monetary obligation shall be
prorated by Buyer and Seller on the Closing Date.
H. SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENTS. Buyer
hereby acknowledges that this Agreement does not contain a financing
contingency and that the receipt of subordination, nondisturbance and
attornment agreements ("SNDAs") from the tenants at the Property is not a
condition precedent to Buyer's obligation to purchase the Property
hereunder. However, Seller shall permit Buyer to attempt to obtain SNDAs
from the tenants at the Property in connection with the financing that
Buyer may be obtaining in connection with the transactions contemplated by
this Agreement, and Seller's sole obligation hereunder shall be to
reasonably cooperate with Buyer's efforts to attempt to obtain such SNDAs
from the tenants at the Property (and for the purposes of this subparagraph
F, Seller shall be deemed to have reasonably cooperated with Buyer's
efforts if Seller delivers such SNDAs to the tenants at the Property
promptly after receipt thereof from Buyer [but Seller shall have no
obligation to negotiate the form of such SNDAs with such tenants or with
Buyer's lender]). In this connection, Seller shall promptly deliver to
Buyer the originals of any SNDAs received by Seller.
5. CLOSING PROCEDURE. The sale and purchase herein provided shall
be consummated on the Closing Date through escrow pursuant to the "Escrow
Instructions" (as hereinafter defined). As used herein, "Closing Date"
means the date that is ten (10) days after the later to end of (a) the
Final Review Period, or (b) the Title Review Period, or such earlier date
as may be agreed upon by Buyer and Seller in writing.
A. ESCROW. On or before the Closing Date, the parties shall
deliver to Title Company 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, and (2) by Buyer, the Closing
Payment in immediately available federal funds, and (3) by each of the
parties, the remaining closing documents provided for in paragraph 5.B
hereof. Such deliveries shall be made pursuant to either joint or separate
escrow instructions ("Escrow Instructions") to be executed by Buyer, Seller
and Title Company 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 Title Company's receipt of the Deed, the Closing Payment,
the other closing documents provided for in paragraph 5.B hereof, and the
irrevocable and unconditional commitment of the Title Company to issue the
Owner's Policy in the form specified in paragraph 4.A hereof at Closing.
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 Title Company's depositing the same for recordation, (y) the
Closing Payment (and the Deposit) shall be delivered by Title Company to
Seller and (z) the following items shall be delivered by the Title Company
as provided for in the Escrow Instructions:
(1) SELLER DELIVERIES. Seller shall deliver the following to Title
Company on or before the Closing Date (and, upon closing, Title Company
shall deliver the same to Buyer):
(a) A duly executed and acknowledged ▇▇▇▇ of sale, assignment and
assumption agreement ("▇▇▇▇ of Sale, 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 paragraph 7.B 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 satisfying federal and, if applicable, state law
requirements;
(d) A notice to the tenants ("Tenant Notice") signed by Seller
advising them of the sale in form reasonably satisfactory to Seller and
Buyer;
(e) To the extent in Seller's possession or control, originals of
all Leases, Service Contracts, the balance of any tenant advertising,
merchandising, promotional funds or other similar accounts, plans and
specifications, tenant files, invoices, ▇▇▇▇▇▇▇▇ and other similar books
and records necessary for the continued operation of the Property,
licenses, permits, certificates of occupancy, certificates of insurance
from any tenants, and keys tagged for identification, to the extent the
foregoing relate to the Property (such delivery being made by causing such
items to be retained at the Property), such delivery being made by actual
delivery of any such items that are in the possession and control of Seller
or its property manager at any location other than the Property, and by
causing any such items that are on the Property to be retained at the
Property, but except for keys tagged for identification, Seller and its
property manager shall be entitled to retain duplicate copies of any and
all such items (but Seller covenants and agrees that except for disclosures
to Seller's officers, directors, partners, employees, agents, attorneys,
accountants, inspectors, consultants, investors, or lenders, and except as
may be required by applicable law or by any existing agreements binding
Seller, Seller shall use reasonable efforts to keep all such items strictly
confidential);
(f) If requested by Buyer, an executed assignment of Seller's
rights under any of the Permitted Exceptions, to the extent such rights are
assignable, such assignment being in substantially the same form as the
▇▇▇▇ of Sale, Assignment and Assumption Agreement (and being herein called
the "Additional Assignment and Assumption Agreement");
(g) 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;
(h) The originals of any Tenant Estoppel Certificates, the REA
Estoppel Certificate and any SNDAs received by Seller pursuant to
paragraphs 4.E, 4.F or 4.G, respectively, hereof, to the extent not
previously delivered to Seller;
(i) Evidence reasonably satisfactory to Buyer respecting the
termination of Seller's property manager for the Property;
(j) Evidence reasonably satisfactory to Buyer and Title Company
that Seller has satisfied its obligations under the "▇.▇. ▇▇▇▇▇▇ ▇▇▇" (as
defined below) and the "Penney Loan Documents" (as defined below),
respectively, with respect to the termination of (1) that certain Easement
& Operating Agreement (the "▇.▇. ▇▇▇▇▇▇ ▇▇▇") dated July 25, 1996, by and
between ▇.▇. Penney Company, Inc., a Delaware corporation ("Penney") and
Seller, (2) the lien of that certain Construction Loan Agreement dated as
of July 25, 1996 by and between Penney and Seller (the "Penney Construction
Loan"), and (3) all obligations under the Credit Line Deed of Trust and
Security Agreement, the Assignment of Rents and Leases, the Assignment of
Construction Documents and the other loan documents referenced in the
Penney Construction Loan (collectively, the "Penney Loan Documents"),
except for any surviving obligations of Seller; and
(k) 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) BUYER DELIVERIES. Buyer shall deliver the following to Title
Company on or before the Closing Date (and, upon closing, Title Company
shall deliver the same to Seller):
(a) A duly executed and acknowledged ▇▇▇▇ of Sale, Assignment and
Assumption Agreement;
(b) A certificate of Buyer ("Buyer Closing Certificate") updating
the representations and warranties contained in paragraph 7.C hereof to the
Closing Date and noting any changes thereto;
(c) A Tenant Notice signed by Buyer;
(d) An executed Additional Assignment and Assumption Agreement, if
the same is executed by Seller;
(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. Seller shall pay the title insurance premiums
attributable to the Owner's Policy (but not for any lender's policy of
title insurance), the costs of the Survey and any "grantor tax" customarily
paid by the Seller in the State of Virginia. Buyer shall pay (i) all title
insurance premiums attributable to any lender's policy of title insurance,
(ii) all costs and expenses related to Buyer's due diligence examinations,
reviews and inspections, (iii) all recording fees or charges, (iv) all
transfer and sales taxes, if any, payable in connection with the Deed
(excluding any "grantor tax" customarily paid by the Seller), and (v) the
prepayment penalty on the existing loan encumbering the Property in an
amount not to exceed Ninety-Eight Thousand Eight Hundred Seventy Three And
27/100 Dollars ($98,873.27). Seller and Buyer shall each pay one-half of
all escrow closing costs of the Title Company. Seller and Buyer shall each
pay its own attorney's fees and expenses and its own 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) TAXES. All real estate taxes and assessments on the Property
for the current year on a per diem basis. In no event shall Seller be
charged with or be responsible for any increase in the taxes on the
Property resulting from the sale of the Property or from any improvements
made or leases entered into on or after the Closing Date. If any
assessments on the Property are payable in installments, then the
installment for the current period shall be prorated (with Buyer assuming
the obligation to pay any installments due after the Closing Date).
(b) FIXED RENT. All fixed, minimum or base rentals (other than
percentage rent and expense reimbursement amounts) and other tenant charges
received in respect to the month in which the Closing Date occurs (the
"Current Month") shall be prorated. Such fixed rents 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). Fixed rents which are delinquent as of the Closing Date shall
not be prorated on the Closing Date. All delinquent fixed 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
delinquent fixed rents received after the Closing Date attributable to
periods prior to the Closing Date and Seller shall promptly remit to Buyer
that portion of fixed rents received after the Closing Date attributable to
periods on and after the Closing Date. Buyer shall reasonably cooperate
with Seller in collecting any delinquent fixed rents due Seller (but Buyer
shall not be required to litigate, declare a default in any Lease, or incur
any additional out of pocket costs in order to collect any such delinquent
fixed rents due Seller). Seller hereby reserves its right to institute an
action against any tenant for delinquent fixed rents attributable to
periods prior to the Closing Date (but in no event shall Seller have any
right to institute eviction proceedings with respect thereto, terminate any
Lease or attach any tenant's property at the Property).
(c) PERCENTAGE RENT. Any percentage rent payments payable by
tenants under Leases ("Percentage Rent") with respect to the "Applicable
Percentage Rent Period" (as hereinafter defined) shall be prorated as set
forth in this paragraph: All Percentage Rent payments received by Seller
with respect to the Applicable Percentage Rent Period shall be retained by
Seller until the year-end adjustments provided below and all Percentage
Rent payments received by Buyer with respect to the Applicable Percentage
Rent Period shall be retained by Buyer until such year-end adjustments.
Within thirty (30) days after receipt of the year-end gross sales report
from the tenant under each Lease (i.e., the gross sales report provided by
the tenant at the end of each lease year as provided under such tenant's
Lease, but only to the extent that each such lease year begins prior to the
Closing Date and ends on or after the Closing Date; such lease year period
being herein called the "Applicable Percentage Rent Period"), the aggregate
amount of Percentage Rent payments shall be calculated and Seller shall be
entitled to its "allocable share" of each such amount. As used herein,
Seller's "allocable share" with respect to each Lease means a fraction, the
numerator of which is the number of days in the Applicable Percentage Rent
Period in which such Lease is in effect prior to the Closing Date and the
denominator of which is the aggregate number of days in which such Lease is
in effect during the entire Applicable Percentage Rent Period. Within
thirty (30) days following Buyer's receipt of the year-end gross sales
report from each tenant after the end of such tenant's Applicable
Percentage Rent Period, Buyer shall promptly and accurately ▇▇▇▇ such
tenant for Percentage Rent payments in accordance with the terms of the
applicable Lease and shall diligently pursue collection thereof (and each
party shall deliver to the other party such information as either party
shall reasonably request in connection therewith). To the extent that
either party has retained or receives amounts in excess of the amount to
which it is entitled hereunder, such party shall remit such excess amount
to the other party on or before the date which is thirty (30) days after
the year-end adjustment for each Lease (or if the applicable Percentage
Rent payment has not yet been received, on or before the date which is
thirty (30) days after the receipt of any such Percentage Rent payment for
each Lease). Percentage Rent payments which are delinquent as of the
Closing Date shall not be prorated on the Closing Date. All Percentage
Rent payments shall first be applied to the most recently accrued
obligation of such tenant and then to the delinquent Percentage Rent
obligations of such tenant. Buyer shall promptly remit to Seller that
portion of delinquent Percentage Rent payments received on or after the
Closing Date attributable to periods prior to the Closing Date, and subject
to the adjustments set forth above, Seller shall promptly remit to Buyer
that portion of any Percentage Rent payments received by it on, or after
the Closing Date attributable to periods on or after the Closing Date.
Buyer shall (1) promptly and accurately ▇▇▇▇ tenants for all Percentage
Rent payments, (ii) ▇▇▇▇ tenants for all delinquent Percentage Rent
payments in the same manner as Buyer bills tenants for in its normal
▇▇▇▇▇▇▇▇ (but Buyer shall have the right to ▇▇▇▇ tenants for delinquent
Percentage Rent payments and then current Percentage Rent payments on a
separate basis), and (iii) exert reasonable efforts to pursue the
collection of all Percentage Rent payments (including any delinquent
payments) and reasonably cooperate with Seller in collecting any delinquent
Percentage Rent payments due Seller (but shall not be required to litigate,
declare a default in any Lease, or incur any additional out of pocket costs
in order to collect any such delinquent Percentage Rent payments due
Seller). Seller hereby reserves its right to institute an action against
any tenant for delinquent Percentage Rent payments attributable to periods
prior to the Closing Date (but in no event shall Seller have any right to
institute eviction proceedings with respect thereto, terminate any Lease or
attach any tenant's property at the Property).
(d) EXPENSE REIMBURSEMENTS. Any common area charges, taxes,
operating expense and other expense reimbursement obligations of the
tenants under the Tenant Leases ("Expense Reimbursements") for the 1998
calendar year shall be prorated as set forth in this paragraph: The
Expense Reimbursements for the 1998 calendar year are paid on an estimated
basis in monthly installments in advance. All Expense Reimbursement
payments received by Seller with respect to the 1998 calendar year shall be
retained by Seller until the year-end adjustments provided below and all
Expense Reimbursement payments with received by Buyer respect to the 1998
calendar year shall be retained by Buyer until such year-end adjustments.
On or before March 10, 1999, the aggregate amount of Expense Reimbursement
payments for each Lease for the 1998 calendar year shall be calculated and
Seller shall be entitled to its "allocable share" of each such amount. As
used herein, Seller's "allocable share" with respect to each Lease means a
fraction, the numerator of which is the number of days in the 1998 calendar
year in which such Lease is in effect prior to the Closing Date and the
denominator of which is the aggregate number of days in which such Lease is
in effect during the 1998 calendar year. On or before March 10, 1999,
Buyer shall promptly and accurately ▇▇▇▇ all tenants for Expense
Reimbursement payments in accordance with the terms of the applicable
Leases and shall diligently pursue collection thereof (each party shall
deliver to the other party such information as either party shall
reasonably request in connection therewith). To the extent that either
party has retained or receives amounts in excess of the amount to which it
is entitled hereunder, such party shall remit such excess amount to the
other party on or before the date which is thirty (30) days after the
year-end adjustment for each Lease (or if the applicable Expense
Reimbursement payment has not yet been received, on or before the date
which is thirty (30) days after the receipt of any such Expense
Reimbursement payment for each Lease). Expense Reimbursement payments
which are delinquent as of the Closing Date shall not be prorated on the
Closing Date. All Expense Reimbursement payments shall first be applied to
the most recently accrued obligation of such tenant and then to the
delinquent Expense Reimbursement obligations of such tenant. Buyer shall
promptly remit to Seller that portion of delinquent Expense Reimbursement
payments received on or after the Closing Date attributable to periods
prior to the Closing Date, and subject to the adjustments set forth above,
Seller shall promptly remit to buyer all Expense Reimbursement payments
received by it on or after the Closing Date and attributable to periods on
or after the Closing Date. Buyer shall (1) promptly and accurately ▇▇▇▇
tenants for all Expense Reimbursement payments, (ii) ▇▇▇▇ tenants for all
delinquent Expense Reimbursement payments in the same manner as Buyer bills
tenants for in its normal ▇▇▇▇▇▇▇▇ (but Buyer shall have the right to ▇▇▇▇
tenants for delinquent Expense Reimbursement payments and then current
Expense Reimbursement payments on a separate basis), and (iii) exert
reasonable efforts to pursue the collection of all Expense Reimbursement
payments (including any delinquent payments) and reasonably cooperate with
Seller in collecting any delinquent Expense Reimbursement payments due
Seller (but shall not be required to litigate, declare a default in any
Lease, or incur any additional out of pocket costs in order to collect any
such delinquent Expense Reimbursement payments due Seller). Seller hereby
reserves its right to institute an action against any tenant for delinquent
Expense Reimbursement payments attributable to periods prior to the Closing
Date (but in no event shall Seller have any right to institute eviction
proceedings with respect thereto, terminate any Lease or attach any
tenant's property at the Property).
(e) OPERATING EXPENSES. All items of income or expense under any
of the Service Contracts, together with all other normal and customary
operating expenses.
(f) PREPAID RENTALS. Seller shall deliver or provide a credit to
Buyer on the Closing Date in an amount equal to all prepaid rentals
received by Seller for periods on or after the Closing Date and all
Security Deposits, if any, then held by Seller.
(g) LEASE COMMISSIONS. On or before the Closing Date, Seller shall
pay or cause to be paid (or there shall be escrowed for payment at closing)
all leasing and brokerage commissions which are payable with respect to
Leases affecting such Property executed prior to the expiration of the
Final Review Period, whether the same are due on or prior to the Closing
Date or payable in installments subsequent thereto and including any
portion thereof due upon any renewals of any such Lease or options to lease
additional space but only if such renewal or additional space option is
exercised prior to the expiration of the Final Review Period. Buyer shall
assume the payment of all leasing and brokerage commissions which may
hereafter become due with respect to (i) any renewals of any Leases or
options to lease additional space under any Leases if such renewals or
additional space options are exercised and commence or arise after the
expiration of the Final Review Period, and (ii) any Leases hereinafter
executed prior to the closing with Buyer's written consent.
(2) CALCULATION. The prorations and payments shall be made on the
basis of a written statement submitted to Buyer and Seller by Escrow Holder
prior to the Closing and approved by Buyer and Seller. In the event any
prorations or apportionments made under this subparagraph D shall prove to
be incorrect for any reason, then any party shall be entitled to an
adjustment to correct the same provided written notice of such inaccuracy
and request for correction is given not later than August 31, 1999. Except
as expressly provided in this subparagraph D to the contrary, 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 reprorated when the information is available, but not
later than August 31, 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. In connection with
any assignment of insurance proceeds hereunder, Seller shall credit Buyer
with an amount equal to the applicable deductible amount under Seller's
insurance. 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. At all times from
the Effective Date through the Closing Date, Seller shall, at its expense,
maintain its existing casualty insurance and rental income loss insurance
with respect to the Property. In the event that, after the expiration of
the Final Review Period but prior to the Closing Date, any portion of the
Property is damaged as a result of the release of any "Hazardous Material"
(as defined below) at, upon, under or within the Property, Seller may
either remediate such release or provide Buyer with a reduction in the
Purchase Price equal to the cost of remediating such release, but if the
cost of such remediation is in excess of $500,000, either Buyer or Seller
may, at their respective option, terminate this Agreement by notice to the
other party, given on or before the Closing Date. Following any
termination of this Agreement by either party pursuant to this paragraph 6,
the Escrow Deposit shall be refunded to Buyer and neither party will have
any further obligations hereunder (except for those provisions hereof which
expressly survive such termination).
7. REPRESENTATIONS, WARRANTIES AND COVENANTS.
A. GENERAL DISCLAIMER. Except as specifically set forth in
paragraph 7.B below and in the closing documents delivered hereunder, 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 Buyer has previously examined, reviewed
and inspected, and during the Final Review Period, 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 this Agreement and the closing documents
delivered hereunder, 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 IMPLIED
WARRANTY OR WARRANTY 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 LIABILITY ACT ("CERCLA") 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 to Buyer that, 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. To Seller's knowledge, except as
set forth in Exhibit "H", neither Seller nor any tenant under the tenant
leases is in monetary default or material non-monetary default under any of
such tenant leases that remains uncured.
(2) LITIGATION. Except as set forth in Exhibit "H-1" attached
hereto and made a part hereof, there is no action, litigation, condemnation
or other proceeding pending or, to Seller's knowledge threatened against
the Property or against Seller with respect to the Property.
(3) COMPLIANCE. To Seller's knowledge, Seller has received no
written notice from any governmental authority having jurisdiction over the
Property to the effect that the Property is not in compliance with
applicable laws and ordinances.
(4) SERVICE CONTRACTS. There are no Service Contracts or to
Seller's knowledge, other agreements (other than as expressly set forth in
this Agreement) relating to the Property which will be in force on the
Closing Date, except as described in Exhibit "J", and to Seller's
knowledge, neither Seller nor any contractor under any such Service
Contracts or other agreements is in material default thereunder that
remains uncured.
(5) 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.
(6) ENVIRONMENTAL MATTERS. Except as set forth in the
environmental reports listed on Exhibit "K" attached hereto and made a part
hereof, or in any environmental report obtained by Buyer, Seller has
received no written notice of the existence, deposit, storage, removal,
burial or discharge of any Hazardous Material at, upon, under, within, from
or adjacent to the Property, in an amount which would, as of the date
hereof, give rise to an "Environmental Compliance Cost". The term
"Hazardous Material" shall mean (i) asbestos and any chemicals, flammable
substances or explosives, any radioactive materials (including radon), any
hazardous wastes or substances which have, as of the date hereof, been
determined by any applicable Federal, State or local government law to be
hazardous or toxic by the U.S. Environmental Protection Agency, the U.S.
Department of Transportation, and/or any instrumentality now or hereafter
authorized to regulate materials and substances in the environment which
has jurisdiction over the Property ("Environmental Agency"), and (ii) any
oil, petroleum or petroleum derived substance, any drilling fluids,
produced waters and other wastes associated with the exploration,
development or production of crude oil, which materials listed under items
(i) and (ii) above cause the Property (or any part thereof) to be in
material violation of any applicable environmental laws or the regulations
of any Environmental Agency. The term "Environmental Compliance Cost"
means any reasonable out-of-pocket cost, fee or expense incurred directly
to satisfy any requirement imposed by an Environmental Agency to bring the
Property into compliance with applicable Federal, State and local laws and
respecting Hazardous Materials.
(7) SELLER'S KNOWLEDGE. For purposes of this Agreement, Seller's
knowledge means, as of the Effective Date (and as of the Closing Date), the
present actual knowledge of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President of JMB Realty
Corporation and partnership coordinator overseeing the investment of Seller
in the Property (after having made inquiry of Seller's third party property
manager (both the off-site or on-site personnel who are directly involved
with leasing and management of the Property) with respect to the
representations and warranties contained in this Agreement).
C. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby
represents and warrants to Seller that: this Agreement and all agreements,
instruments and documents herein provided to be executed or to be caused to
be executed by Buyer are and on the Closing Date will be duly authorized,
executed and delivered by and are binding upon Buyer. Buyer is a limited
liability company, duly organized and validly existing and in good standing
under the laws of the State of Alabama, and is duly authorized and
qualified to do all things required of it under this Agreement; and Buyer
has the capacity and authority to enter into this Agreement and consummate
the transactions herein provided.
D. SURVIVAL. Except for any cause of action based solely on a
claim of actual fraud, any cause of action of a party for a breach of the
foregoing representations and warranties (or any representations and
warranties contained in any of the closing documents delivered hereunder)
shall survive until the date which is nine (9) months after the Closing
Date, at which time such representations and warranties (and any cause of
action resulting from a breach thereof not then in litigation) shall
terminate. Except for any cause of action based solely on a claim of actual
fraud, any claim that either party may have at any time against the other
party for a breach of any such representation or warranty, whether known or
unknown, which is not asserted by notice from Buyer to Seller within such
nine (9) month period will not be valid or effective. Notwithstanding the
foregoing, if either party shall have actual knowledge as of the Closing
Date that any of the representations or warranties of the other party
contained herein are fraudulent, false or inaccurate or that the other
party is in breach or default of any of its obligations under this
Agreement, and the party having such actual knowledge of the other party's
fraudulent conduct, misrepresentation, breach or default nonetheless closes
the transactions hereunder and acquires the Property, then the other party
shall have no liability or obligation respecting such fraudulent, false or
inaccurate representations or warranties or other breach or default (and
any cause of action resulting therefrom shall terminate upon such closing
hereunder). For purposes of this paragraph 7.D, Seller's actual knowledge
shall mean Seller's knowledge as set forth in paragraph 7.B(7) above, and
Buyer's actual knowledge shall mean (i) anything in the actual knowledge of
▇▇▇▇ ▇▇▇▇ of ▇▇▇▇▇▇ Realty Management, Inc., and/or (ii) any matters
disclosed to Buyer in the due diligence materials delivered to Buyer by
Seller, and/or (iii) any matters disclosed to Buyer in the due diligence
reports obtained by Buyer.
E. 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 pursuant to its normal course of business (such maintenance
obligations not including extraordinary capital expenditures or
expenditures not incurred in such normal course of business), 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 shall be terminated at closing
at no cost to Buyer.
(3) 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 keep Buyer reasonably informed as to the status of leasing prior to
the Closing Date. After the expiration of the Final Review Period (unless
Buyer shall have theretofore delivered a Termination Notice hereunder),
Seller shall not enter into any new leases or material modifications of
existing leases thereafter without the consent of Buyer (which consent will
not be unreasonably withheld and which consent shall be deemed to be given
if notice of disapproval is not received by Seller within three (3)
business days of Buyer's receipt of such request for approval together with
a copy of the proposed lease or modification thereof and a summary of all
leasing commissions and tenant improvement costs payable in connection
therewith). In no event shall Seller have any obligation to enter into any
new lease or modify any existing lease unless Buyer shall agree to pay or
reimburse Seller on the Closing Date for all tenant improvement costs and
leasing commissions incurred by Seller under or in connection therewith
(Buyer's agreement to pay or reimburse for such amounts not to be
unreasonably withheld).
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, AND BUYER SHALL NOT HAVE DEFAULTED UNDER THIS AGREEMENT, 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 BY REASON OF SELLER'S DEFAULT,
AND BUYER SHALL HAVE PERFORMED ITS OBLIGATIONS HEREUNDER AND SHALL BE
READY, WILLING AND ABLE TO CLOSE, THEN BUYER SHALL BE ENTITLED TO
SPECIFICALLY ENFORCE THIS AGREEMENT (BUT, SUBJECT ONLY TO THE PROVISIONS OF
PARAGRAPH 9.I HEREOF, NO OTHER ACTION, FOR DAMAGES OR OTHERWISE, SHALL BE
PERMITTED). IN THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE
FOR ANY REASON OTHER THAN THE FAILURE OF SATISFACTION OF THE CONDITIONS
DESCRIBED IN PARAGRAPH 4 HEREOF OR THE TERMINATION OF THIS AGREEMENT IN
ACCORDANCE WITH PARAGRAPH 6 HEREOF OR THE DEFAULT OF SELLER, THEN THE
ESCROW DEPOSIT SHALL BE DELIVERED TO SELLER AS FULL COMPENSATION AND
LIQUIDATED DAMAGES UNDER AND IN CONNECTION WITH THIS AGREEMENT AS SELLER'S
SOLE REMEDY AND SELLER SHALL NOT BE ENTITLED TO SEEK DAMAGES, SPECIFIC
PERFORMANCE OR ANY OTHER LEGAL OR EQUITABLE REMEDY (EXCEPT FOR AN ACTION TO
RECOVER SUCH ESCROW DEPOSIT), SUBJECT ONLY TO THE PROVISIONS OF
PARAGRAPH 9.I HEREOF. 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 ONLY TO THE
PROVISIONS OF PARAGRAPH 9.I HEREOF.
-------------------- --------------------
Seller's Initials Buyer's Initials
9. MISCELLANEOUS.
A. BROKERS.
(1) Except as provided in subparagraph (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 paragraph 9.A(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, (a)
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 $750,000, and (b) if the closing of the
transactions hereunder shall have occurred (and Seller shall not have
waived, relinquished or released any applicable rights in further
limitation), the aggregate liability of Buyer arising pursuant to or in
connection with the representations, warranties, indemnifications,
covenants or other obligations (whether express or implied) of Buyer under
this Agreement (or any document executed or delivered in connection
herewith) shall not exceed $750,000.
(2) If the closing of the transactions hereunder shall have
occurred, then in no event shall Seller or Buyer 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 either party's liability for any proration
amounts provided for in this Agreement.
(3) No constituent partner or member in or manager or agent of
either Seller or Buyer, nor any advisor, trustee, director, officer,
employee, beneficiary, shareholder, participant, representative, manager or
agent of any corporation or trust that is or becomes a constituent partner
or member in Seller or Buyer (including, but not limited to, JMB Realty
Corporation and the individual(s) specified in paragraph 7.B(7) above)
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 each party and its respective successors and assigns and,
without limitation, all other persons and entities, shall look solely to
the other party's assets for the payment of any claim or for any
performance, and each party, 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 constituent partner or member
in Seller or Buyer (or in any other constituent partner or member of Seller
or Buyer), nor any obligation of any constituent partner or member in
Seller or Buyer (or in any other constituent partner or member of Seller or
Buyer) to restore a negative capital account or to contribute capital to
Seller (or to any other constituent partner or member of Seller or Buyer),
shall at any time be deemed to be the property or an asset of Seller or
Buyer or any such other constituent partner or member (and neither any
party nor any of its respective 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 or member's obligation to restore or
contribute). Nothing contained in the foregoing shall limit Seller's right
to receive the Escrow Deposit in accordance with the terms and provisions
of paragraph 9 hereof.
(4) Notwithstanding the foregoing, Seller or its successor in
interest shall either (a) maintain a net worth on a current value basis of
not less than $1,000,000 for the period commencing on the Closing Date and
ending on the date which is nine (9) months after the Closing Date (or if a
timely claim is made by Buyer hereunder, until such claim is finally
resolved) (the "Survival Period"), or (b) establish reserves of at least
$750,000 in cash or reasonably liquid investments as of the Closing Date
for the purpose of paying during the Survival Period any claims, expenses,
liabilities or attorneys' fees of Seller or such successor-in-interest
(including any amounts incurred in connection with resolving or defending
any claim of liability hereunder) with respect to a breach or alleged
breach of 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),
with respect to the Property.
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 Virginia.
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 in which
Buyer is the managing general partner and has not less than a 51% interest
in capital and profits in such limited partnership or to a limited
liability company in which Buyer is the managing member and has not less
than a 51% interest in capital and profits in such limited liability
company. 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:
--------
Bristol Mall, L.L.C.
c/o Aronov Realty Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇
With copies to:
--------------
▇▇▇▇ ▇▇▇▇, ▇▇., Esq.
▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
To Seller:
---------
Bristol Mall Associates
c/o JMB Realty Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇
With copies to:
--------------
Pircher, ▇▇▇▇▇▇▇ & ▇▇▇▇▇
1999 Avenue of the Stars
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Real Estate Notices (GML)
And to:
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Hamptons International
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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.
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.
K. TIME PERIODS. In the event the time for performance of any
obligation hereunder expires on a day that is not a business day, the time
for performance shall be extended to the next business day. As used
herein, the term "business day" shall mean any day other than a Saturday, a
Sunday or any day that is a legal holiday in either the State of Virginia,
the State of Illinois or the State of Alabama.
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.
BRISTOL MALL ASSOCIATES,
an Illinois general partnership
By: JMB INCOME PROPERTIES, LTD - V,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: _______________________
Name: _______________________
Title:_______________________
"Seller"
BRISTOL MALL, L.L.C.,
an Alabama limited liability company
By: SOUTHEAST L.L.C. MANAGEMENT, INC.,
an Alabama corporation,
Its Manager
By: ________________________
Name: _______________________
Title: ______________________
"Buyer"
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.
Date: ________________ CHICAGO TITLE COMPANY,
a ________________________________
By: _____________________________
Name: ___________________________
Title: _________________________
"Escrow Holder"
EXHIBIT LIST
------------
"A" - Property Description
"B" - Personal Property
"C" - Anchor Tenants
"D" - Required Tenants
"E-1" - Form of Tenant Estoppel Certificate
"E-2" - Form of REA Estoppel Certificate
"F" - Deed
"G" - ▇▇▇▇ of Sale, Assignment and Assumption Agreement
"H" - Exceptions to Seller's Representations and
Warranties
"H-1" - List of Pending Litigation
"I" - List of Leases
"J" - Service Contracts
"K" Environmental Reports
"L" Survey Requirements
"M-1" Outstanding Due Diligence Issues
"M-2" Buyer and Seller Actions
"M-3" Due Diligence Conditions Precedent
EXHIBIT "A"
Property Description
EXHIBIT "B"
PERSONAL PROPERTY
MAINTENANCE EQUIPMENT
Pressure Washer
2 Lawn Tractors
1 Cart
1 Mower
1 Mower
1 Drill Press
1 Circular Saw
Tool Box with Tools
5 Ladders
7 Wheeled Carts
OFFICE/CUSTOMER SERVICE EQUIPMENT
VCR Conference Room
Christmas Decor
1 Chain Saw
1 Homelite Chain Saw
1 Credenza
1 Bridge
1 Stack-on-Hutch
1 Tackboard
1 Task Light
1 Desk-Right Pedestal
1 Bookcase
2 Monitor Extension Arms
1 Lateral File
1 Conference Rm. Table (Used)
1 Kitchen Table (Used)
4 Kitchen Chairs
6 Conference Chairs
1 File Cabinet/Office
1 Cash Register
1 Recorder/Player
6 Wheel Chairs
2 Double Strollers
1 Basic Infant Stroller
2 Heavy Duty Wheel Chairs
2 URN Arrangements
6 Stools w/adj. Arms
7 Receptacles w/Domes
2 Stools w/adj. Arms
6 RMU's (Carts)
5 Fire Extinguishers
1 Kent Vacuum Cleaner
3 Fiberglass Trash Units
1 Utility Cabinet
1 Sears Drill/Driver/Hammer Kit
1 Trailer For Main. Truck
1 Royal Vacuum Cleaner
1 Micro -16 Recorder
2 Portable Radios
2 Radio Chargers
1 ▇▇▇▇▇▇ 12 OMP Calculator
1 Desk Chair
1 Filing Cabinet (2 Drawer)
1 Accounting Computer
1 Commercial Sprayer
1 Gas Pressure Washer
1 4X8 Trailer
1 Sears, Craftsman Circular Saw
1 Sears, Craftsman Wet/Dry Shop Vac
1 Secretarial Chair
1 Office Computer
1 ▇▇▇▇▇-▇▇▇▇▇▇ Typewriter
2 Lobby Chairs
1 Square Corner Table
1 Secretarial Chair
1 Executive Chair
2 Arm Chair
1 Desk Chair
1 ▇▇▇▇▇▇ Calculator (MP210)
1 ▇▇▇▇▇▇ Calculator (MP210)
1 Coat Rack
3 Filing Cabinets
1 Computer Stand
1 ▇▇▇▇▇▇ Calculator (MP210)
1 Desk
1 Credenza
4 Arm Chairs
1 IBM Electric Typewriters
1 Filing Cabinet (2 Drawer)
1 Table
1 Desk
2 Filing Cabinet (4-Drawer)
1 Table
1 Secretarial Desks
2 Secretarial Chairs
7 Motorola Port. Radios
6 Radio Charges
4 Carrying CS. F/Radios
8 Batteries for Radios
1 Desk (3' X 6')
2 Filing Cabinets
2 Desks
EXHIBIT "C"
ANCHOR TENANTS
1. ▇.▇. Penney Corporation
2. ▇▇▇▇▇-▇▇▇▇
3. Sears, ▇▇▇▇▇▇▇ and Co.
4. ▇▇▇▇▇▇▇▇'▇
EXHIBIT "D"
REQUIRED TENANTS
Carmike Cinemas - 17,411 square feet
▇▇▇▇▇▇ New York - 9,362 square feet
Piccadilly - 13,601 square feet
Rack Room Shoes - 5,369 square feet
The Closet - 5,287 square feet
EXHIBIT "E-1"
FORM OF TENANT ESTOPPEL CERTIFICATE
See Attached
Bristol Mall Associates (the "Seller")
c/o JMB Realty Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Bristol Mall, L.L.C. (the "Buyer")
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
SouthTrust Bank, National Association (the "Lender")
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Commercial Real Estate Department
Re: Bristol Mall (the "Property")
Bristol, Virginia
Suite No.: _____ (the "Leased Premises")
Gentlemen:
In connection with the pending sale of the Property from Seller to
Buyer and the financing of the purchase price by Lender, the undersigned
certifies the following to each party Named above:
1. The undersigned ("Tenant") is the tenant under that certain
Lease Agreement dated __________________ entered into between
_______________________ d/b/a __________________________________ and Seller
(the "Landlord") as landlord, as amended by the following amendments,
modification agreements and letter agreements: ____________________
(collectively, the "Lease") with regard to the premises described in the
Lease (the "Leased Premises"). The Lease represents the entire agreement
as between Tenant and Landlord and there is no other lease or other
agreement between the Tenant and the Landlord or any previous landlord
pertaining to the Leased Premises. The Lease is in full force and effect
and has not been assigned, modified, supplemented, or amended in any away
except as set forth above.
2. Seller is the current landlord under the Lease.
3. There are no defaults by either party under the Lease or any
conditions which with only the passage of time or giving of notice or both
would become a default by either party under the terms of the Lease.
4. Fixed monthly rent of $_________ has been paid through
____________ and no rents are currently due and payable to Landlord.
5. The security deposit of $_________ is currently held by
Landlord under the Lease.
6. No rents have been prepaid except as provided by the Lease, but
in no event have rents been paid more than thirty (30) days in advance and
there are no set-offs or credits against future accruing rents.
7. Tenant is open, operating and in possession of the Leased
Premises pursuant to the terms of the Lease and the current lease term will
terminate on _____________________. Tenant has no option to extend the
current lease term.
8. Tenant has no right to purchase all or any portion of the
Property.
9. All of the work to the Leased Premises which is the
responsibility of the Landlord, if any, has been completed in accordance
with the terms of the Lease. As of the date hereof, there are no
allowances, incentives, inducements or other monies due and payable from
Landlord to Tenant.
10. There are no actions, either voluntary or involuntary, pending
against the undersigned under the bankruptcy laws of the United States, or
under the bankruptcy laws of any state.
11. Tenant has not and will not engage in any activity that would
involve the use of the demised premises for the storage, use or disposal of
any hazardous substances or toxic substances in violation of any applicable
law.
12. The address of Tenant to which all notices to Tenant under the
Lease are to be sent is as follows:
------------------------------
------------------------------
------------------------------
------------------------------
This Estoppel Certificate is executed and delivered by Tenant to
Buyer and Seller with the understanding that Buyer and Seller will rely
upon it in connection with the proposed sale of the Property from Seller to
Buyer. This Estoppel Certificate is executed and delivered by Tenant to
Lender with the knowledge that Lender will rely upon it in advancing funds
under its mortgage loan to Buyer in order to finance the purchase of the
Property by Buyer.
d/b/a
By: ____________________
Name: ____________________
Title: ____________________
Date: ____________________
EXHIBIT "E-2"
FORM OF REA ESTOPPEL CERTIFICATE
See Attached
RECIPROCAL OPERATING AGREEMENT CERTIFICATE
January _____, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ Associates
c/o JMB Realty Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Bristol Mall, L.L.C.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
SouthTrust Bank, National Association
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Commercial Real Estate Department
Re: Bristol Mall (the "Project")
Bristol, Virginia
----------------------------
Gentlemen:
Please refer to the reciprocal operating agreement (the
"Reciprocal Operating Agreement") dated as of July 1, 1997, by and between
CZ-Bristol Associates I, L.P., a Tennessee limited partnership ("CZ-1"),
CZ-Bristol Associates II, L.P., a Tennessee limited partnership ("CZ-2")
and Bristol Mall Associates, an Illinois general partnership ("Seller"),
and recorded in the public records of Washington County, Virginia, in Book
347 at Page 353. The undersigned understands (i) that Bristol Mall,
L.L.C., an Alabama limited liability company ("Buyer") may be acquiring the
Project, and (ii) that Seller, Buyer and SouthTrust Bank, National
Association, Buyer's lender (the "Lender") are relying upon this letter in
connection with such acquisition (the "Acquisition").
With such understanding, the undersigned hereby represents,
warrants, confirms and agrees, on behalf of itself and its successors and
assigns, for the benefit of Seller, Buyer and Lender and their respective
successors and assigns, that:
1. The Reciprocal Operating Agreement is presently in full
force and effect and has not been amended, and there are no other
agreements between Seller and the undersigned related to the property
subject to the Reciprocal Operating Agreement.
2. To the best knowledge of the undersigned, there is no
default under the Reciprocal Operating Agreement, nor does any state of
facts exist which, with the passage of time or the giving of notice, or
both, would ripen into any such default.
3. The Acquisition does not violate or constitute a default
under the Reciprocal Operating Agreement.
4. The addresses for notices or other communications to be
sent to the undersigned is as set forth in the Reciprocal Operating
Agreement.
5. The Temporary Easement Agreement dated July 1, 1997, by
and between Seller and CZ-2, and recorded in the public records of
Washington County, Virginia, in Book 347 at Page 701, has expired by its
terms and is no longer in force or effect.
6. The undersigned and the person or persons executing this
certificate on behalf of the undersigned have the power and authority to
render this certificate.
Very truly yours,
CZ-BRISTOL ASSOCIATES I, L.P.,
a Tennessee limited partnership
By: BARON CORPORATION,
a Tennessee corporation
Its General Partner
By: ____________________________
Name:____________________________
Its:____________________________
CZ-BRISTOL ASSOCIATES II, L.P.,
a Tennessee limited partnership
By: BARON CORPORATION,
a Tennessee corporation
Its General Partner
By: ____________________________
Name: ___________________________
Its:____________________________
EXHIBIT "F"
DEED
See Attached
DEED OF BARGAIN AND SALE
THIS DEED, dated as of the _____ day of January, 1999, between
BRISTOL MALL ASSOCIATES, an Illinois general partnership (the "Grantor"),
and BRISTOL MALL, L.L.C., an Alabama limited liability company (the
"Grantee"), provides:
THAT for and in consideration of the conveyance made hereby, the
consideration received therefor by the Grantor and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Grantor, subject to the matters described herein, hereby
grants and conveys to the Grantee with special warranty, the real estate
described on Exhibit "A" attached hereto (the "Real Estate"); together with
any right, title and interest of Seller in and to all covenants,
restrictions, easements, rights-of-way and other rights and appurtenances
appertaining to or for the use or benefit of such Real Estate, including
but not limited to any right, title and interest of Seller in and to
adjacent streets, alleys or rights-of-way; and together with all buildings,
structures, fixtures, equipment and other improvements affixed to or
located upon such Real Estate (excluding any fixtures and equipment owned
by tenants of such Real Estate).
The Real Estate is conveyed subject to all recorded easements,
conditions, restrictions and agreements that lawfully apply to the Real
Estate or any part thereof.
IN WITNESS WHEREOF, the Grantor has executed this Deed.
BRISTOL MALL ASSOCIATES,
an Illinois general partnership
By: JMB INCOME PROPERTIES, LTD - V,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: _______________________
Name: _______________________
Title: ______________________
STATE OF ILLINOIS,
COUNTY OF ▇▇▇▇, to wit:
The foregoing instrument was acknowledged before me in the __________
of ______________; _______________, this _____ day of _________________,
19__, by [_____________________________, as
___________________________________ of ___________________________________,
on behalf of the ____________________].
My commission expires: ____________________.
_______________________________
Notary Public
STATE OF ILLINOIS,
COUNTY OF ▇▇▇▇, to wit:
The foregoing instrument was acknowledged before me in the __________
of ______________; _______________, this _____ day of _________________,
19__, by _____________________________.
My commission expires: ____________________.
_______________________________
Notary Public
The address of Grantee[s] is:
EXHIBIT "G"
▇▇▇▇ OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
See Attached
▇▇▇▇ OF SALE, ASSIGNMENT AND ASSUMPTION
(Bristol Mall; Bristol, Virginia)
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
the undersigned, BRISTOL MALL ASSOCIATES, an Illinois general partnership
("Seller"), hereby sells, transfers, assigns and conveys to BRISTOL MALL,
L.L.C., an Alabama limited liability company ("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 hereto; provided, however, that Seller shall retain the benefit of
any exculpation or limitations on liability as set forth in such Leases
with respect to the period prior to the date hereof.
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; provided, however, that Seller shall retain the benefit of
any exculpation or limitations on liability as set forth in such Service
Contracts with respect to the period prior to the date hereof..
4. INTANGIBLE PROPERTY. All right, title and interest of Seller,
to the extent assignable, in and to (i) all warranties and guarantees
relating to the Improvements or the Personal Property, (ii) all permits,
certificates of occupancy, licenses, approvals and authorizations issued by
any governmental authority in connection with the Property, (iii) all
names, trade names, trademarks, logos and other similar rights used solely
in connection with the Property, including, but not limited to, the name
"Bristol Mall", and (iv) all plans, specifications, drawings, manuals and
other records relating to the improvements on the Property or the Personal
Property (collectively, the "Intangible Property").
5. SELLER'S WARRANTY. Seller warrants that the Personal Property
is free of any liens or encumbrances created by Seller other than as
disclosed in the Exhibits attached to the "Agreement" (as defined below) ,
or in any updates of such Schedules.
6. SELLER'S INDEMNITY. Seller shall indemnify and hold Buyer
harmless from any claim, liability, cost or expense (including, without
limitation, reasonable attorneys' fees and costs) arising out of any
obligation or liability of Seller under the Leases or the Service Contracts
arising prior to the date hereof; provided, however, that Seller shall be
released from its indemnity obligations hereunder on the date which is nine
(9) months after the date hereof (except with respect to any claims
asserted prior to the expiration of such nine (9) month period).
This ▇▇▇▇ of Sale, Assignment and Assumption is given pursuant to
that certain Purchase Agreement ("Agreement") dated as of January ___,
1999, between Seller and Buyer, respecting the purchase and sale of that
certain shopping center commonly known as "Bristol Mall" located in the
Bristol, Virginia (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 paragraph 9.B 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 herein
(and subject to the limitations herein) or in (and subject to the
limitations of) the Agreement.
DATED: As of _______________, 1999.
BRISTOL MALL ASSOCIATES,
an Illinois general partnership
By: JMB INCOME PROPERTIES, LTD-V,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: ____________________
Name: ____________________
Title: ____________________
"Seller"
BUYER'S ASSUMPTION
(Bristol Mall; Bristol, Virginia)
As of this ____ day of _______________, 1999, Buyer hereby assumes
all liabilities and obligations of Seller under the Leases and Service
Contracts which arise on or after the date hereof and agrees to perform all
obligations of Seller under the Leases and Service Contracts which are to
be performed or which become due on or after the date hereof (except those
obligations for which Buyer is indemnified pursuant to Section 6 above for
which Seller shall remain liable); provided, however, that Buyer shall have
the benefit of any exculpation or limitations on liability as set forth in
such Leases and Service Contracts. Buyer shall indemnify and hold Assignor
harmless from any claim, liability, cost or expense (including, without
limitation, reasonable attorneys' fees and costs) arising out of Buyer's
failure to perform any obligations or liability of Buyer under the Leases
or the Service Contracts arising on or after the date hereof. Buyer shall
be released from its indemnity obligations hereunder on the date which is
nine (9) months after the date hereof (except with respect to any claims
asserted prior to the expiration of such nine (9) month period).
BRISTOL MALL, L.L.C.,
an Alabama limited liability company
By: SOUTHEAST L.L.C. MANAGEMENT, INC.,
an Alabama corporation,
Its Manager
By: ____________________________
Name: ____________________________
Title: _____________________________
"Buyer"
EXHIBIT "H"
EXCEPTIONS TO SELLER'S REPRESENTATIONS AND WARRANTIES
See Exhibit "H-1" Attached
EXHIBIT "H-1"
LIST OF PENDING LITIGATION
See Attached
EXHIBIT "I"
LIST OF LEASES
ANCHORS
▇.▇. PENNEY CORPORATION
Lease Agreement between Bristol Mall Associates and ▇.▇. ▇▇▇▇▇▇ Corporation
dated November 29, 1989
Memorandum of Lease between Bristol Mall Associates and ▇. ▇. Penney
Corporation dated November 29, 1989
First Amendment of Lease between Bristol Mall Associates and ▇.▇. ▇▇▇▇▇▇
Company dated July 25, 1996
Memorandum of First Amendment of Lease between Bristol Mall Associates and
▇.▇. Penney Company dated July 25, 1996
Easement and Operating Agreement between Bristol Mall Associates and ▇.▇.
▇▇▇▇▇▇ Company, Inc. dated July 25, ▇▇▇▇
▇▇▇▇▇-▇▇▇▇
Lease Agreement between Bristol Mall Associates, successor-in-interest to
ASC of Danville, Inc. and ▇▇▇▇▇-▇▇▇▇ Company, Incorporated-Bristol dated
April 25, 1974
First Amendment between Bristol Mall Associates, successor-in-interest to
ASC of Danville, Inc. and ▇▇▇▇▇-▇▇▇▇ Company, Incorporated-Bristol dated
December 24, 1974
Second Amendment Lease between Bristol Mall Associates and ▇▇▇▇▇-▇▇▇▇,
Incorporated-Bristol dated September 5, 1989
Third Amendment of Lease between Bristol Mall Associates and ▇▇▇▇▇-▇▇▇▇,
Incorporated-Bristol dated June 2, 1993
SEARS, ▇▇▇▇▇▇▇ AND CO.
Lease Agreement between Bristol Mall Associates successor-in-interest to
ASC of Danville, Inc. and Sears, ▇▇▇▇▇▇▇ and dated March 7, 1973
First Amendment Lease between Bristol Mall Associates and Sears, ▇▇▇▇▇▇▇
and Co. dated September 19, 1989
Second Amendment of Lease between Bristol Mall Associates and Sears,
▇▇▇▇▇▇▇ and Co. dated October 7, 1993
Third Amendment of Lease between Bristol Mall Associates and Sears, ▇▇▇▇▇▇▇
and Co. dated December 14, 1995
▇▇▇▇▇▇▇▇'▇
Lease Agreement between Bristol Mall Associates, successor-in-interest to
ASC of Danville, Inc. and ▇▇▇▇▇▇'▇ Incorporated dated April 16, 1974
Lease Modification Agreement between Bristol Mall Associates, successor-in-
interest to ASC of Danville, Inc. and ▇▇▇▇▇▇'▇ Incorporated dated October
4, 1974
Second Lease Modification Agreement Bristol Mall Associates, successor-in-
interest to ASC of Danville, Inc. and ▇▇▇▇▇▇'▇ Incorporated dated October
15, 1992
Agreement of Assignment and Assumption of Lease between Bristol Mall
Associates, ▇▇▇▇'▇ Department Stores, Inc. (Assignor), and ▇▇▇▇▇▇▇▇'▇, Inc.
(Assignee) dated October 15, 1992
Agreement and Release between Bristol Mall Associates and ▇▇▇▇'▇ Department
Stores dated February 25, 1993
Short Term Lease Agreement between Bristol Mall Associates and ▇▇▇▇▇▇▇'▇,
Inc. dated September 15, 1998
MALL SHOPS
ATM
ATM Operating Agreement and Indenture of Lease between Bristol Mall
Associates, PNC Bank, and Retail Growth ATM Systems, LLC dated November 3,
1997
Afterthoughts Boutique
Lease Agreement between Bristol Mall Associates and ▇.▇. ▇▇▇▇▇▇▇▇▇ Co.
d/b/a Afterthoughts Boutique dated May 16, 1991
▇. ▇▇▇▇▇▇ Bookseller
Lease Agreement between Bristol Mall Associated and ▇. ▇▇▇▇▇▇ Bookseller,
Inc. d/b/a ▇. ▇▇▇▇▇▇ Bookseller dated April 1, 1990
▇▇▇▇-SOUTH MOBILITY - KIOSK
Short Term Lease Agreement between Bristol Mall Associates and ▇▇▇▇-South
Mobility, DCS, dated September 16, 1998
Birthplace of Country Music
Short Term Lease Agreement between Bristol Mall Associates and Birthplace
of Country Music dated April 29, 1998
Blockbuster Music Store
Lease Agreement dated between Bristol Mall Associates and Blockbuster SC
Music Corp., formerly Super Club Music Corp. and successor-in-interest to
The Record Bar, Inc. dated July 12, 1990
Stock Transfer Consent Agreement between Bristol Mall Associates, The
Record Bar, Inc., and Super Club Retail Entertainment Corp. dated May 15,
1991
Assignment of Lease between The Record Bar, Inc. (Assignor), Super Club
Music Corp. (Assignee), and Bristol Mall Associates dated November 1, 1993
Amendment to Lease between Bristol Mall Associates and Blockbuster SC Music
Corp. d/b/a Blockbuster Music formerly Super Club Music Corp. dated August
23, 1994
Calendar Club
Short Term Lease Agreement between Bristol Mall Associates and Calendar
Club dated April 21, 1998
CAMBE'S HOBBY AND SUPPLY
Short Term Lease Agreement between Bristol Mall Associates and ▇▇▇▇▇▇
Enterprises, Inc. d/b/a Cambe's Hobby and Supply dated September 1, 1998
CARMIKE CINEMAS
Lease Agreement between Bristol Mall Associates successor-in-interest to
ASC of Bristol, Inc. and Carmike Cinemas, successor-in-interest to American
Multi-Cinema Inc. dated April 28, 1975
Lease Modification Agreement No. 2 between Bristol Mall Associates and
Carmike Cinemas, successor-in-interest to American Multi - Cinema, Inc.
dated January 28, 1981
Assignment and Assumption between Carmike Cinemas (Assignor) and Eastwynn
Theatres, Inc. (Assignee) dated October 1, 1995
THE CELLULAR GROUP - KIOSK
Short Term Lease Agreement between Bristol Mall Associates and The Cellular
Group, dated August 29, 1997
Extension of Short Term Lease, dated July 29, 1998
CHICK-FIL-A
Lease Agreement between Bristol Mall Associates and Chick-Fil-A, Inc. dated
October 11, 1984
CLAIRE'S BOUTIQUES, INC.
Lease Agreement between Bristol Mall Associates and Claire's Boutiques,
Inc. dated July 23, 1990
THE CLOSET
Lease Agreement between Bristol Mall Associates and Maurices Incorporated
d/b/a The Closet dated July 2, 1992
Lease Termination Agreement between Maurices Incorporated d/b/a The Closet
and Bristol Mall Associates dated July 2, 1992
COMPUTER DOCTORS
Short Term Lease Agreement between Bristol Mall Associates and Computer
Doctors, Inc., dated August 18, 1997
Extension of Term of Short Term Lease, dated August 24, 1998
COUNTY SEAT
Lease Agreement between Bristol Mall Associates and County Seat Stores,
Inc. dated June 21, 1990
Lease Amendment and Assumption Agreement between Bristol Mall Associates
and County Seat Stores, Inc. dated October 31, 1997
Diamond Communications (GTE Wireless)
Short Term Lease Agreement between Bristol Mall Associates and Diamond
Communications d/b/a GTE Wireless, dated April 13, 1998
Direct Source
Short Term Lease Agreement between Bristol Mall Associates and Direct
Source, G and D, Inc. d/b/a Direct Source, dated April 27, 1998
EAGLE INK STUDIOS
Short Term Lease Agreement between Bristol Mall Associates and Eagle Ink
Studios, dated October 13, 1998
EVERGREEN
Short Term Lease Agreement between Bristol Mall Associates and Evergreen,
dated July 13, 1998
FINE'S JEWELRY
Lease Agreement between Bristol Mall Associates and Fine's Jewelers, Inc.
dated August 22, 1994
FIRST AMERICAN MERCHANT CENTER
Short Term Lease Agreement between Bristol Mall Associates and First
American National Bank of Tennessee, dated October 14, 1998
FIRST UNION BANK
Ground Lease between Bristol Mall Associates and Dominion National Bank
dated September 15, 1980
Amendment to Lease between Bristol Mall Associates and Dominion National
Bank dated January 31, 1989
Lease Amendment between Bristol Mall Associates and Dominion National Bank
dated November 6, 1991
Third Amendment to Lease between Bristol Mall Associates and First Union
National Bank of Virginia, as successor-in-interest to Dominion National
Bank dated May 30, 1996
FOOTLOCKER
Lease Agreement between Bristol Mall Associates and ▇▇▇▇▇▇ Shoe Corporation
d/b/a Footlocker dated July 3, 1990.
FRESHENS YOGURT
Lease Agreement between Bristol Mall Associates and ▇▇▇▇▇▇▇ Enterprises,
Inc. d/b/a Freshens Yogurt dated December 11, 1990
Lease Amendment between Bristol Mall Associates and ▇▇▇▇▇▇▇ Enterprises,
Inc. d/b/a Freshens Yogurt dated June 1, 1994
Lease Extension Agreement between Bristol Mall Associates and ▇▇▇▇▇▇▇
Enterprises, Inc. d/b/a Freshens Yogurt dated November 26, 1997
▇▇▇▇▇▇▇▇'▇ JEWELERS
Lease Agreement between Bristol Mall Associates and ▇▇▇▇▇▇▇▇'▇ Inc. dated
November 3, 1997
GALLERIA
Short Term Lease Agreement between Bristol Mall Associates and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ d/b/a Galleria, dated June 3, 1998
GENERAL NUTRITION CORPORATION
Lease Agreement between Bristol Mall Associates and General Nutrition
Corporation dated June 22, 1990
▇▇▇▇▇▇'▇ JEWELERS
Lease Agreement between Bristol Mall Associates and ▇▇▇▇▇▇ and ▇▇▇▇▇▇
Services, Inc., d/b/a ▇▇▇▇▇▇'▇ Jewelers dated November 11, 1988
THE ORIGINAL GREAT AMERICAN CHOCOLATE CHIP COOKIE COMPANY, INC
Lease Agreement between Bristol Mall Associates and The Original Great
American Chocolate Chip Cookie Company, Inc. dated April 1990
GUITAR MAN
Short Term Lease Agreement between Bristol Mall Associates and ▇▇▇▇▇▇
▇▇▇▇▇▇ d/b/a Guitar Man, dated April 8, 1998
HAIR PLUS
Lease Agreement between Bristol Mall Associates and ▇▇▇▇▇▇ Enterprises,
Inc. d/b/a Hair Plus dated October 3, 1994
HIBBETT SPORTING GOODS
Lease Agreement between Bristol Mall Associates and Hibbett Sporting Goods,
Inc. dated July 23, 1997
HICKORY FARMS
Short Term Lease Agreement between Bristol Mall Associates and Hickory
Farms, Inc., dated April 21, 1998
HOT TOYS
Short Term Lease Agreement between Bristol Mall Associates and Southeastern
Collectible Expo d/b/a Hot Toys, dated February 10, 1998
▇▇▇ BEE TOYS
Lease Agreement between Bristol Mall Associates and Circus World Toy
Stores, Inc. d/b/a Circus World Toys or Playland Toy Stores dated
September 13, 1985
Lease Termination Agreement between Bristol Mall Associates and Circus
World Toy Stores, Inc. dated September 13, 1985
Storage Agreement between Bristol Mall and Circus World Toy Stores, Inc.
dated October 2, 1987
Amendment/Assignment of Lease between Circus World Toy Stores, Inc.
(Assignor) and ▇▇ ▇▇▇ Bee, Inc. (Assignee), and Bristol Mall Associates
dated October 22, 1991
Lease Amendment between ▇▇ ▇▇▇ Bee, Inc. and Bristol Mall Associates dated
October 10, 1993
Amendment to Lease between Bristol Mall Associates and ▇▇ ▇▇▇-Bee, Inc.
dated October 30, 1995
▇▇▇▇▇▇ SHOES
Lease Agreement between Bristol Mall Associates and ▇▇▇▇▇▇ Shoe Corporation
dated July 3, 1990
LENSCRAFTERS
Lease Agreement between Bristol Mall Associates and Lens Lab - Paris Miki,
Inc. dated June 1, 1989
Assignment of Lease between Paris Miki (USA), Inc. (Assignor),
Lenscrafters, Inc. (Assignee), and Bristol Mall Associates dated September
15, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Lease Agreement between Bristol Mall Associates, successor-in-interest to
ASC of Danville, Inc., and ▇▇▇▇▇▇ Shops of Virginia, Inc. dated February 7,
1974
Assignment of Lease between ▇▇▇▇▇▇ Shops of San ▇▇▇▇, Inc. (Assignor),
▇▇▇▇▇▇ Shops of Virginia, Inc. (Assignee), and Bristol Mall Associates,
successor-in-interest to ASC of Bristol, Inc. dated August 6, 1975
Lease Extension and Amendment Agreement between Bristol Mall Associates and
▇▇▇▇▇▇ New York, Inc. dated July 16, 1996
Lease Extension Agreement between Bristol Mall Associates and ▇▇▇▇▇▇ New
York dated July 24, 1998
LYNN'S HALLMARK
Lease Agreement between Bristol Mall Associates and ▇▇▇▇▇▇▇ Card Shops,
Inc. d/b/a Lynn's Hallmark dated October 4, 1991
Sublease between ▇▇▇▇▇▇▇ Card Shops, Inc. (Lessor) and ▇▇▇▇▇▇ and
Associates, Inc. (Lessee) dated February 12, 1992
▇▇▇▇▇ MOUNTAIN DESIGNS AND GIFTS
Short Term Lease Agreement between Bristol Mall Associates and ▇▇▇▇▇
Mountain Designs and Gifts, dated November 3, 1997
MOUNTAIN SPORTS PRODUCTION - KIOSK
Short Term Lease Agreement between Bristol Mall Associates and Mountain
Sports Production, dated October 22, 1998
Extension of Short Term Lease, dated June 3, 1998
NO FEAR
Short Term Lease Agreement between Bristol Mall Associates and Outta
Control, Inc. d/b/a No Fear, dated November 17, 1997
Extension of Term of Short Term Lease, dated January 14, 1998
Extension of Short Term Lease, dated June 3, 1998
PAPPAGALLO
Lease Agreement between Bristol Mall Associates and Daverett, Inc. d/b/a
Pappagallo dated April 15, 1991
PICCADILLY CAFETERIA
Lease Agreement between Bristol Mall Associates and Piccadilly Cafeterias,
Inc. dated September 9, 1994
PRETZEL TWISTER
Lease Agreement between Bristol Mall Associates and ▇▇▇ ▇▇▇▇▇▇ d/b/a
Pretzel Twister dated June 27, 1995
RACK ROOM SHOES, INC.
Lease Agreement between Bristol Mall Associates and Rack Room Shoes, Inc.
dated January 20, 1995
Lease Amendment between Rack Room Shoes, Inc. and Bristol Mall Associates
dated September 26, 1997
RADIO SHACK
Lease Agreement between Bristol Mall Associates and Tandy Corporation d/b/a
Radio Shack dated May 31, 1994
REGIS HAIRSTYLISTS
Lease Agreement between Bristol Mall and Regis Corporation dated November
14, 1997
▇▇▇▇▇'▇ NAILS
Lease Agreement between Bristol Mall Associates and ▇▇▇▇▇ ▇. ▇▇▇▇ d/b/a
▇▇▇▇▇'▇ Nails dated July 29, 1997
Scoot, Scurry, Haste, Hurry, Boggie, Bustle, Get-Up & Hustle
Short Term Lease Agreement between Bristol Mall Associates and Wellmont
Health System d/b/a Scoot, Scurry, Haste, Hurry, Boggie, Bustle, Get-Up &
Hustle dated January 13, 1998
SHADRACK WATER SPORTS
Short Term Lease Agreement between Bristol Mall Associates and Shadrack
Water Sports, dated October 30, 1997
Extension of Term of Short Term Lease, dated March 13, 1998
SKYLINE LEATHER
Lease Agreement between Bristol Mall Associates and ▇▇▇▇ ▇▇▇▇▇ d/b/a
Skyline Leather dated April 12, 1996
Lease Extension Agreement between Bristol Mall Associates and ▇▇▇▇ ▇▇▇▇▇
d/b/a Skyline Leather dated March 18, 1997
SOFTWARE, ETC.
Lease Agreement between Bristol Mall Associates and Babbages, Etc. LLC
d/b/a Software, Etc. dated April 30, 1998
▇▇▇▇▇▇▇ GIFTS, INC.
Lease Agreement between Bristol Mall Associates and ▇▇▇▇▇▇▇ Gifts, Inc.
dated February 13, 1990.
Amendment No. One to Lease between Bristol Mall Associates and ▇▇▇▇▇▇▇
Gifts, Inc. dated January 27, 1997
Lease Extension Agreement between Bristol Mall Associates and ▇▇▇▇▇▇▇
Gifts, Inc. dated April 10, 1998
SUBWAY
Lease Agreement between Bristol Mall Associates and Subway Real Estate
Corp. dated August 20, 1997
Sublease between Subway Real Estate Corp. (Sublessor) and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (Sublessee) dated August 23, 1997
SUN CATCHERS - KIOSK
Short Term Lease Agreement between Bristol Mall Associates and Sun
Catchers, dated October 13, 1998
SUNGLASS HUT
Lease Agreement between Bristol Mall Associates and Sunglass Hut Trading
Corporation dated June 1, 1995
SWEET DREAMS
Short Term Lease Agreement between Bristol Mall Associates and ▇▇▇▇▇▇▇
▇▇▇▇▇▇ d/b/a Sweet Dreams, dated June 11, 1998
TALK N' LEARN TOYS - KIOSK
Short Term Lease Agreement between Bristol Mall Associates and General
Creation US, LLC d/b/a Talk N' Learn Toys, dated October 13, 1998
TAPE WORLD
Lease Agreement between Bristol Mall Associates and Record Town, Inc. d/b/a
Tape World dated December 18, 1990
Amendment No. One to Lease Agreement between Bristol Mall Associates and
Record Town, Inc. d/b/a Tape World dated May 21, 1996
Lease Extension Agreement between Bristol Mall Associates and Record Town,
Inc. d/b/a Tape World dated March 31, 1997
Lease Extension Agreement between Bristol Mall Associates and Record Town,
Inc. d/b/a Tape World dated March 22, 1998
TG'S RESTAURANT
Lease Agreement between Bristol Mall Associates and S.G.N. Enterprises,
Inc. d/b/a TG's Restaurant dated July 10, 1990
Lease Amendment between Bristol Mall Associates and S.G.N Enterprises, Inc.
d/b/a TG's Restaurant dated February 3, 1992
Lease extension and Amendment Agreement between Bristol Mall Associates and
S.G.N. Enterprises, Inc. d/b/a ▇. ▇▇▇▇▇▇'▇ Restaurant dated June 29, 1998
THINGS REMEMBERED
Lease Agreement between Bristol Mall Associates and Things Remembered, Inc.
dated September 8, 1997
TILT
Lease Agreement between Bristol Mall Associates and ▇▇▇▇▇▇▇ and Dimes
Incorporated d/b/a Tilt dated January 24, 1991
A TOUCH OF COUNTRY
Short Term Lease Agreement between Bristol Mall Associates and A Touch of
Country, dated April 30, 1997
Extension of Term of Short Term Lease, dated December 17, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ RACING AND CARDS
Short Term Lease Agreement between Bristol Mall Associates and ▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇ d/b/a Victory Lane Racing and Cards dated July 28, 1998
VILLA PIZZA
Lease Agreement between Bristol Mall Associates and New Villa Pizza, Inc.
dated ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇
Lease Agreement between Bristol Mall Associates, successor-in-interest to
ASC of Danville, Inc. and Zales Corporation dated November 20, 1973
Assignment, Assumption and Consent Agreement between ▇▇▇▇ Corporation and
Zale-Bristol Mall, Inc. dated July 19, 1974
EXHIBIT "J"
SERVICE CONTRACTS
ADT Security Systems, Inc. - Fire & Life Safety System Service
Aramark Uniform Services - Uniforms and Floor Mats
▇▇▇▇▇ Mall Merchants Association - Musak Service
▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇ Industries - Trash Removal
East Tennessee Fire Alarm, Inc. - Quarterly Sprinkler Inspections
▇▇▇▇ ▇▇▇▇ Heating - ▇.▇. ▇▇▇▇▇▇ HVAC
▇▇▇▇▇▇▇ Gardens, Inc. - Interior Plant Maintenance/Seasonal Plantings
▇▇▇▇▇▇▇▇▇▇ Elevator Company - Escalator Maintenance
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ - Elevator and Escalator Maintenance for ▇.▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Landscaping Company - Exterior Landscaping
Pepsi-Cola General Bottlers - Vending
RAM Financial - Kent Scrubber Lease Agreement
RAM Financial - 1997 Dodge Ram Pick-Up Truck Lease
RAM Financial - Sierra Tractor Lease
RAM Financial - Tymco 210 Air Sweeper Lease
Roto-Rooter - Sewer System Maintenance
▇▇▇▇▇▇ Exterminating Company - Pest Control
Southwest Security - Security Personnel and Vehicle
Tri-Cities Industrial Builders - Snow Removal
▇▇▇▇▇▇ Leasing Co. d/b/a Storage To Go - Storage Unit
United Telephone - Telecommunications Equipment Maintenance
Visions Design Group - Tenant Space Construction Coordinator
EXHIBIT "K"
ENVIRONMENTAL REPORTS
Phase 1 Environmental Assessment, dated January 25, 1990
Assessment Survey, dated February 5, 1990
Correspondence between Bristol Mall and Sears, ▇▇▇▇▇▇▇ & Company regarding
Underground Storage Tanks, dated May 30, 1990
Correspondence from Bristol Virginia Utilities regarding Transformer Oil
Leakage, dated May 30, 1990
Correspondence from Bristol Virginia Utilities regarding Transformer Oil
Leakage, Replacement of the Transformer, and Certified PCB Soil Analysis,
dated July 24, 1990
Notification for Underground Storage Tanks, dated December 15, 1990
Correspondence between McGuire, Woods, Battle & ▇▇▇▇▇▇ and Sears, ▇▇▇▇▇▇▇ &
Company regarding Underground Storage Tanks, dated March 11, 1991
Correspondence between McGuire, Woods, Battle & ▇▇▇▇▇▇ and Sears, ▇▇▇▇▇▇▇ &
Company regarding Underground Storage Tanks, dated April 23, 1991
Correspondence regarding Re-Evaluation of Underground Storage Tanks by ATEC
Associates, dated July 29, 1991
Vacutect Tank Testing Report, dated August 13, 1991
Consulting Agreement between Westinghouse Environmental and Geotechnical
Services, Inc. and Bristol Mall Associates, dated 1991
Correspondence between JMB Realty Corporation and Sears, ▇▇▇▇▇▇▇ & Company
regarding Underground Storage Tanks, dated November 25, 1991
Westinghouse Environmental and Geotechnical Services, Inc. Report - Removal
of 500 Gallon Waste Oil Tank, dated January 17, 1992
Correspondence from Commonwealth of Virginia, Department of Environmental
Quality documenting the permanent closure of the Underground Storage Tanks,
dated June 11, 1993
▇▇▇▇▇▇ Laboratory Asbestos Inspection Report of former Ormonds Store, dated
June 7, 1994
Correspondence summarizing the Asbestos Inspection of former Ormonds Store,
dated June 10, 1994
E. ▇▇▇▇ ▇▇▇▇▇▇ Company, Inc.'s Proposal for Asbestos Removal in former
Ormonds Store, dated January 20, 1995
Asbestos Permit Application and Notification for Demolition/Renovation,
dated January 26, 1995
Correspondence between Winter Construction Company and Bristol Mall
Associates regarding asbestos removal during the 1997 renovation.
Correspondence includes receipts from E. ▇▇▇▇ ▇▇▇▇▇ Company Inc. for
disposal.
*Site Assessment dated June 8, 1992, prepared by Professional Services
Industries, Inc.
* Not currently in Seller's possession or control/Not delivered to Buyer
EXHIBIT "L"
SURVEY REQUIREMENTS
See Attached
EXHIBIT "M-1"
OUTSTANDING DUE DILIGENCE ISSUES
1. ▇▇▇▇▇-▇▇▇▇ LEASE.
A. Buyer's review of Exhibit A to the ▇▇▇▇▇-▇▇▇▇ Lease.
B. Buyer's confirmation that the ▇▇▇▇▇-▇▇▇▇ Lease does not expire
prior to July 22, 2004.
C. Buyer's confirmation that each of Seller's and ▇▇▇▇▇-▇▇▇▇'▇
material obligations with respect to the expansion and renovation of the
Improvements and leased premises, as applicable, have been completed,
including, confirmation that all payments which Seller was required to make
to ▇▇▇▇▇-▇▇▇▇ upon the completion of ▇▇▇▇▇-▇▇▇▇'▇ renovation of the leased
premises have been made.
2. ▇▇▇▇▇▇▇'▇ LEASE.
A. Buyer's review of Exhibit B to the ▇▇▇▇▇▇▇'▇ Lease.
B. Buyer's review of the Professional Services Report.
C. Buyer's confirmation that all of Seller's material obligations
with respect to the expansion and renovation of the Improvements have been
completed.
3. SEARS LEASE.
A. Buyer's review of Exhibit C to the Sears Lease.
B. Buyer's confirmation that each of Seller's and Sears' material
obligations with respect to the expansion and renovation of the
Improvements and leased premises, as applicable, have been completed.
4. ▇.▇. PENNEY LEASE.
A. Buyer's confirmation of the expiration date of the ▇.▇. ▇▇▇▇▇▇
Lease.
B. Buyer's confirmation that each of Seller's and ▇.▇. ▇▇▇▇▇▇'▇
material obligations with respect to the expansion and renovation of the
Improvements and the construction of the leased premises, as applicable,
have been completed, including, confirmation that all payments which ▇.▇.
▇▇▇▇▇▇ was required to make to Seller in connection with the construction
of the leased premises have been made.
C. Buyer's confirmation that all of the obligations under each of
the ▇.▇. ▇▇▇▇▇▇ ▇▇▇ and the Penney Construction Loan Documents will be
terminated and released as of the Closing Date, except for any surviving
obligations of Seller.
5. CARMIKE CINEMAS LEASE.
A. Buyer's review of Exhibit A to the Carmike Cinemas Lease.
6. UNDERGROUND STORAGE TANK. Buyer's confirmation that the underground
storage tank located near the Sears store will either be removed or sealed
prior to the Closing Date in accordance with applicable law.
7. SANITARY SEWER LINE AND INDEMNITY AGREEMENT. Buyer's determination,
in its sole and absolute discretion, that Buyer is satisfied with (a) the
condition of the sanitary sewer line under the ▇.▇. ▇▇▇▇▇▇ Building and (b)
the terms and provisions of that certain Indemnity Agreement dated July 25,
1996, by and between Bristol Mall Associates and ▇.▇. Penney Company, Inc.
(the "Sewer Indemnity").
EXHIBIT "M-2"
BUYER AND SELLER ACTIONS
1. ▇▇▇▇▇-▇▇▇▇ LEASE.
A. Buyer and Seller shall each make a good faith reasonable effort
to obtain from ▇▇▇▇▇-▇▇▇▇ a copy of Exhibit A to the ▇▇▇▇▇-▇▇▇▇ Lease. In
this connection, to the extent that such Exhibit A does not exist (or is
not in the possession of ▇▇▇▇▇-▇▇▇▇), Seller's obligation hereunder shall
include the obligation to make a good faith reasonable effort to reach a
mutual agreement with ▇▇▇▇▇-▇▇▇▇ on the form of such Exhibit A (including
an obligation on the part of Seller to attempt to have representatives of
Seller meet with representatives of ▇▇▇▇▇-▇▇▇▇, if necessary, for such
purpose).
B. Seller shall use reasonable efforts to provide Buyer with
reasonable evidence that ▇▇▇▇▇-▇▇▇▇ Lease does not expire prior to July 22,
2004 (which evidence may be in the form of an estoppel certificate from
▇▇▇▇▇-▇▇▇▇).
C. Seller shall use reasonable efforts to provide Buyer with
reasonable evidence that each of Seller's and ▇▇▇▇▇-▇▇▇▇'▇ material
obligations with respect to the expansion and renovation of the
Improvements and leased premises, as applicable, have been completed,
including, reasonable evidence that all payments which Seller was required
to make to ▇▇▇▇▇-▇▇▇▇ upon the completion of ▇▇▇▇▇-▇▇▇▇'▇ renovation of the
leased premises have been made (which evidence may be in the form of an
estoppel certificate from ▇▇▇▇▇-▇▇▇▇).
2. ▇▇▇▇▇▇▇'▇ LEASE.
A. Buyer and Seller shall each make a good faith reasonable effort
to obtain from ▇▇▇▇▇▇▇'▇ a copy of Exhibit B to the ▇▇▇▇▇▇▇'▇ Lease. In
this connection, to the extent that such Exhibit B does not exist (or is
not in the possession of ▇▇▇▇▇▇▇'▇), Seller's obligation hereunder shall
include the obligation to make a good faith reasonable effort to reach a
mutual agreement with ▇▇▇▇▇▇▇'▇ on the form of such Exhibit B (including an
obligation on the part of Seller to attempt to have representatives of
Seller meet with representatives of ▇▇▇▇▇▇▇'▇, if necessary, for such
purpose).
A. Seller shall use reasonable efforts to obtain a copy of the
Professional Services Report.
B. Seller shall use reasonable efforts to provide Buyer with
reasonable evidence that all of Seller's material obligations with respect
to the expansion and renovation of the Improvements have been completed
(which evidence may be in the form of an estoppel certificate from
▇▇▇▇▇▇▇'▇).
3. SEARS LEASE.
A. Buyer and Seller shall each make a good faith reasonable effort
to obtain from Sears a copy of Exhibit C to the Sears Lease. In this
connection, to the extent that such Exhibit C does not exist (or is not in
the possession of Sears), Seller's obligation hereunder shall include the
obligation to make a good faith reasonable effort to reach a mutual
agreement with Sears on the form of such Exhibit C (including an obligation
on the part of Seller to attempt to have representatives of Seller meet
with representatives of Sears, if necessary, for such purpose).
B. Seller shall use reasonable efforts to provide Buyer with
reasonable evidence that each of Seller's and Sear's material obligations
with respect to the expansion and renovation of the Improvements and leased
premises, as applicable, have been completed, including, reasonable
evidence that all payments which Seller was required to make to Sears upon
the completion of Sear's renovation of the leased premises have been made
(which evidence may be in the form of an estoppel certificate from Sears).
4. ▇.▇. PENNEY LEASE.
A. Seller shall use reasonable efforts to provide Buyer with
written confirmation of the actual expiration date of the ▇.▇. ▇▇▇▇▇▇ Lease
(which confirmation may be in the form of an estoppel certificate from ▇.▇.
Penney).
B. Seller shall use reasonable efforts to provide Buyer with
reasonable evidence that each of Seller's and ▇.▇. ▇▇▇▇▇▇'▇ material
obligations with respect to the expansion and renovation of the
Improvements and the construction of the leased premises, as applicable,
have been completed, including, reasonable evidence that all payments which
▇.▇. Penney was required to make to Seller in connection with the
construction of the leased premises have been made (which evidence may be
in the form of an estoppel certificate from ▇.▇. ▇▇▇▇▇▇).
5. CARMIKE CINEMAS LEASE.
A. Seller shall provide Buyer with all information in Seller's
possession and control regarding Carmike Cinemas with respect to disputed
common area maintenance charges.
B. Buyer and Seller shall each make a good faith reasonable effort
to obtain from Carmike a copy of Exhibit A to the Carmike Lease. In this
connection, to the extent that such Exhibit A does not exist (or is not in
the possession of Carmike), Seller's obligation hereunder shall include the
obligation to make a good faith reasonable effort to reach a mutual
agreement with Carmike on the form of such Exhibit A (including an
obligation on the part of Seller to attempt to have representatives of
Seller meet with representatives of Carmike, if necessary, for such
purpose).
6. UNDERGROUND STORAGE TANK. Buyer and Seller shall each make a good
faith reasonable effort to agree on plans for the removal or sealing of the
underground storage tank located near the Sears store in accordance with
applicable law.
7. SANITARY SEWER LINE AND INDEMNITY AGREEMENT. Buyer shall have the
right to film the interior of such sanitary sewer line by running a video
camera through the line and to conduct such other engineering studies as
Buyer shall deem reasonably necessary to satisfy itself with respect to the
condition of such sanitary sewer line.
EXHIBIT "M-3"
DUE DILIGENCE CONDITIONS PRECEDENT
1. ▇▇▇▇▇-▇▇▇▇ LEASE.
A. Buyer's receipt of a copy of Exhibit A to the ▇▇▇▇▇-▇▇▇▇ Lease.
B. Buyer's confirmation that the ▇▇▇▇▇-▇▇▇▇ Lease does not expire
prior to July 22, 2004.
B. Buyer's confirmation that each of Seller's and ▇▇▇▇▇-▇▇▇▇'▇
material obligations with respect to the expansion and renovation of the
Improvements and leased premises, as applicable, have been completed,
including, confirmation that all payments which Seller was required to make
to ▇▇▇▇▇-▇▇▇▇ upon the completion of ▇▇▇▇▇-▇▇▇▇'▇ renovation of the leased
premises have been made.
2. ▇▇▇▇▇▇▇'▇ LEASE.
A. Buyer's receipt of a copy of Exhibit B to the ▇▇▇▇▇▇▇'▇ Lease.
B. Buyer's receipt of a copy of the Professional Services Report.
C. Buyer's confirmation that all of Seller's material obligations
with respect to the expansion and renovation of the Improvements have been
completed.
3. SEARS LEASE.
A. Buyer's receipt of a copy of Exhibit C to the Sears Lease.
B. Buyer's confirmation that each of Seller's and Sear's material
obligations with respect to the expansion and renovation of the
Improvements and leased premises, as applicable, have been completed,
including, confirmation that all payments which Seller was required to make
to Sears upon the completion of Sear's renovation of the leased premises
have been made.
4. ▇.▇. ▇▇▇▇▇▇ LEASE.
A. Buyer's confirmation of the expiration date of the ▇.▇. Penney
Lease.
B. Buyer's confirmation that each of Seller's and ▇.▇. ▇▇▇▇▇▇'▇
material obligations with respect to the expansion and renovation of the
Improvements and the construction of the leased premises, as applicable,
have been completed, including, confirmation that all payments which ▇.▇.
Penney was required to make to Seller in connection with the construction
of the leased premises have been made.
C. Buyer's confirmation that all of the obligations under each of
the ▇.▇. ▇▇▇▇▇▇ ▇▇▇ and the Penney Construction Loan Documents will be
terminated and released as of the Closing Date, except for any surviving
obligations of Seller.
5. CARMIKE CINEMAS LEASE.
A. Buyer's and Seller's satisfactory resolution of the issues
regarding Carmike Cinemas with respect to disputed common area maintenance
charges.
B. Buyer's receipt of a copy of Exhibit A to the Carmike Lease.
6. UNDERGROUND STORAGE TANK. Buyer's and Seller's satisfactory
resolution of the issues regarding the removal or sealing of the
underground storage tank located near the Sears store in accordance with
applicable law.
7. SANITARY SEWER LINE AND INDEMNITY AGREEMENT. Buyer's determination,
in its sole and absolute discretion, that it is satisfied with both (a) the
condition of such sanitary sewer line and (b) the terms and provisions of
the Sewer Indemnity.