SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 14, 1999
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XI
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(Exact name of registrant as specified in its charter)
Illinois 0-10494 36-3102608
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(State or other) (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Organization
900 N. Michigan Avenue, Chicago, Illinois 60611-1575
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(Address of principal executive office)
Registrant's telephone number, including area code: (312) 915-1987
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MALL OF MEMPHIS
MEMPHIS, TENNESSEE
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS. On May 14, 1999, the
Partnership, through the joint venture Mall of Memphis Associates (the
"Venture"), transferred title to the land, building and related
improvements, and other assets and liabilities related to the Mall of
Memphis (the "Property"), located in Memphis, Tennessee, in consideration
of a discharge of the mortgage loans. The Property is an approximate
1,015,000 square foot enclosed mall regional shopping center in which the
Venture owned approximately 493,000 square feet of mall space and
peripheral stores. As of the date of the transfer, the Property was
approximately 67% occupied.
The Venture initiated discussions with the underlying lender
regarding a loan modification. However, the lender was unwilling to grant
an acceptable loan modification to cover future operating deficits. The
Venture therefore decided not to commit any additional amounts to the
property and, effective January 1, 1998, suspended the payment of required
debt service on its first, second and third mortgage notes secured by the
Property. Beginning in 1998, the Venture began remitting cash flow
payments to the lender. The Venture entered into negotiations with the
lender and an unaffiliated third party regarding the disposition of the
Property to the unaffiliated third party. As a result, in May 1999, the
Venture transferred title to the Property in consideration of a discharge
of the mortgage loans. The Partnership and the Venture have no future
liability for any representations, warranties or covenants to the purchaser
as result of the disposal of the Property. The Property was classified as
held for sale or disposition as of July 1, 1997 and therefore has not been
subject to continued depreciation from such date for financial reporting
purposes. The venture expects to recognize in 1999 a gain on disposition
of approximately $13,000,000, primarily as a result of a previous
impairment loss recognized by the Venture in 1997 of $13,143,000, and an
extraordinary loss due to the write off of the deferred mortgage fees of
approximately $500,000 for financial reporting purposes. In addition, the
Venture expects to recognize a gain of approximately $11,600,000 for
Federal income tax purposes, of which substantially all of the gain will be
allocated to the Partnership with substantially no distributable proceeds.
The Partnership was released from its environmental indemnity
agreement related to the Property as a result of the transaction and was,
therefore, able to withdraw approximately $1,000,000 from an escrow account
primarily established to secure a portion of its potential obligation under
the environmental indemnity. Additionally, the Partnership had a note
payable to a former venture partner secured only by the venture partner's
former partnership interest in the joint venture and was non-recourse to
the Partnership. As a result of the Venture transferring title to the
Property in May 1999, as discussed above, the Partnership is not obligated
to pay the outstanding principal and interest which will result in the
Partnership recognizing a gain of approximately $6,000,000 in 1999 for
financial reporting and Federal income tax purposes with no corresponding
distributable proceeds.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements. Not applicable.
(b) Pro Forma Financial Information - Narrative
As a result of the disposition of the Property by the Venture, after
May 14, 1999, there will be no further rental income, interest income,
mortgage and other interest, property operating expenses or amortization of
deferred expenses recorded for the Property in the consolidated financial
statements of the Partnership which for the Partnership's most recent
fiscal year (the year ended December 31, 1998) were approximately
$9,710,000, $79,000, $4,579,000, $4,896,000 and $182,000, respectively.
For the three months ended March 31, 1999, the Partnership's consolidated
financial statements reflected rental income, interest income, mortgage and
other interest, property operating expenses and amortization of deferred
expenses of approximately $2,196,000, $27,000, $1,129,000, $1,123,000 and
$35,000, respectively. Also, as a result of the disposition of the
Property, there are no further assets and liabilities related to the
Property in the Partnership's consolidated financial statements, which at
March 31, 1999, consisted of current assets of approximately $2,879,000;
properties held for sale or disposition of approximately $30,000,000;
deferred expenses of approximately $765,000; accrued rents receivable of
approximately $69,000; current portion of long-term debt of approximately
$39,676,000; other current liabilities of approximately $4,268,000; long-
term debt of $5,000,000 and other non-current liabilities of approximately
$55,000.
(c) Exhibits
10.1 Agreement for Deed in Lieu of Foreclosure and Exhibits thereto,
by and between Mall of Memphis Associates and the American Mall of Memphis,
LLC dated May 14, 1999.
10.2 Letter Agreement to the Deed in Lieu of Foreclosure and
Exhibits thereto dated May 24, 1999.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XI
BY: JMB Realty Corporation
(Corporate General Partner)
By: GAILEN J. HULL
Senior Vice President
Principal Accounting Officer
Date: June 1, 1999
EXHIBIT 10.1
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AGREEMENT FOR DEED IN LIEU OF FORECLOSURE
THIS AGREEMENT FOR DEED IN LIEU OF FORECLOSURE (this "Agreement") is
entered into as of this 3rd day of May, 1999, by and between MALL OF
MEMPHIS ASSOCIATES, an Illinois general partnership ("Associates"), and THE
AMERICAN MALL OF MEMPHIS, LLC, a California limited liability company
("American").
R E C I T A L S
This Agreement is made with reference to the following facts, which
the parties hereto agree are true and accurate:
A. Associates obtained three (3) loans (collectively, the "Loan")
from Teachers Insurance and Annuity Association of America, a New York
corporation ("IAA"). The Loan is evidenced by that certain Tennessee Deed
of Trust Note No. 1 dated December 23, 1982, executed by Associates and
payable to the order of TIAA, in the original principal amount of Thirty-
Two Million Five Hundred Fifty Thousand Dollars ($32,550,000), that certain
Tennessee Deed of Trust Note No. 2 dated December 23, 1982, executed by
Associates and payable to the order of TIAA, in the original principal
amount of Three Million Four Hundred Fifty Thousand Dollars ($3,450,000),
and that certain Tennessee Deed of Trust Note No. 3 dated March 31, 1993,
executed by Associates and payable to the order of TIAA, in the original
principal amount of Nine Million Six Hundred Twenty-Five Thousand Dollars
($9,625,000) (collectively and as subsequently amended, the "Note").
B. The obligations of Associates in connection with the Note are
secured by, among other things, that certain Tennessee Deed of Trust,
Assignment of Rents and Security Agreement dated as of December 23, 1982,
executed by Associates for the benefit of TIAA and recorded in the Land
Records of Shelby County, Tennessee as Instrument No. T7 9982 (as amended
by that certain First Supplement to Deed of Trust, Assignment of Rents and
Security Agreement, Modification of Notes and of Assignment of Lessor's
Interest in Leases dated as of March 31, 1993 by and between Associates and
TIAA and recorded in the Land Records of Shelby County, Tennessee as
Instrument No. DL 0528 and that certain Second Supplement to Deed of Trust,
Assignment of Rents and Security Agreement, Modification of Notes and of
Assignment of Lessor's Interest in Leases dated as of February 1, 1997 by
and between Associates and TIAA and recorded in the Land Records of Shelby
County, Tennessee as Instrument No. GR 4888, the "Deed of Trust"),
encumbering Associates' fee title in and to the real property commonly
known as the Mall of Memphis, Memphis Tennessee and more particularly
described on EXHIBIT A attached hereto, together with all buildings,
improvements and fixtures thereon (the "Property").
C. The Note, the Deed of Trust and all of the other documents
described therein or executed in connection therewith, and all amendments
thereto, are collectively referred to herein as the "Loan Documents."
D. American hereby advises Associates that American has obtained,
pursuant to that certain Assignment and Assumption of Loan Purchase and
Sale Agreement of even date herewith between American and American Mall
Property, LLC, a California limited liability company ("AMP"), an
assignment of all of AMP's right title and interest in and to that certain
Loan Purchase and Sale Agreement dated as of December 11, 1998, between AMP
and TIAA (as amended, the "Loan Purchase Agreement"), pursuant to which
American has contracted to purchase the Loan from TIAA. If American
exercises its right to acquire the Loan, then TIAA shall assign all of its
right, title and interest in and to the Note, the Deed of Trust and the
other Loan Documents to American. American and Associates agree that a
condition precedent to American's obligations under this Agreement shall be
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American's acquisition of the Loan under the Loan Purchase Agreement on
such terms and conditions as American shall determine in its sole and
absolute discretion. Such acquisition must occur prior to or, at the
latest, concurrently with American obtaining fee simple title to the
Property pursuant to the terms and conditions of this Agreement. American
shall have no obligation, responsibility or liability to Associates under
this Agreement if American fails or refuses to acquire the Loan from TIAA
for any reason or under any circumstance, including without limitation a
breach or default by either American or TIAA under the Loan Purchase
Agreement. Associates acknowledges and agrees that it is not an intended
third party beneficiary of the Loan Purchase Agreement and that American
shall not have any obligation to Associates to enforce, perform or demand
performance of the Loan Purchase Agreement by any party thereto. American
further acknowledges and agrees that TIAA is not a party to and shall not
be bound by this Agreement and has no obligation, responsibility or
liability to honor this Agreement or to provide Associates with the
benefits described herein if American fails or refuses to acquire the
Property from Associates in accordance with the terms of this Agreement.
E. The obligations of Associates under the Loan Documents are now
in default; provided, however, that this statement is only for the benefit
of American and only for the purposes of this Agreement.
F. Associates has requested that upon American's acquisition of
the Loan pursuant to the Loan Purchase Agreement, American forebear from
foreclosing the Deed of Trust and accept a deed in lieu of foreclosure as
herein provided.
G. This Agreement is based upon arms-length negotiations among the
parties.
H. At the request of, and as an accommodation to, Associates,
American has agreed, subject to the satisfaction of all the terms and
conditions of this Agreement, to accept the conveyance of the Property in
lieu of American enforcing its rights against Associates under any of the
Loan Documents.
A G R E E M E N T
In consideration of the above recitals, the promises, agreements,
covenants and undertakings contained in this Agreement and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
mutually acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the terms set forth
below shall have the following meanings:
1.1 "Assignment" means that certain Assignment of Leases,
Contracts and Permits in the form attached hereto as EXHIBIT B.
1.2 "Bill of Sale" means that certain Bill of Sale in the
form attached hereto as EXHIBIT C.
1.9 "Borrower General Release" mean that certain General
Release in the form attached hereto as EXHIBIT D.
1.3 "Carlyle" means Carlyle Real Estate Limited Partnership -
XI, an Illinois limited partnership.
1.4 "Confidentiality Agreement" means that certain Access and
Confidentiality Agreement dated as of January 1, 1999, executed by
Associates and AMP and as assigned by AMP to American pursuant to that
certain Assignment and Assumption of Confidentiality Agreement of even date
herewith between American and AMP.
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1.5 "Deed" means that certain Quitclaim Deed in the form
attached hereto as EXHIBIT E.
1.6 "Transfer Documents" means all of the documents, other
than this Agreement, executed by American and/or Associates in connection
with the transaction contemplated by this Agreement.
1.7 "Escrow" means Escrow No. 990222 with Escrow Holder.
1.8 "Escrow Holder" means Chicago Title Company, a California
corporation, located at 700 South Flower Street, Suite 900, Los Angeles,
California 90017, Attention: Ms. Amy Hiraheta.
1.9 "Lender General Release" mean that certain General
Release in the form attached hereto as EXHIBIT F.
1.10 "Governmental Authority" means all federal, state,
county, municipal, and local governments, administrative agencies, and
quasi-governmental authorities having jurisdiction over the Property (or
any portion thereof) or Associates.
1.11 "Hahn" means TrizecHahn Centers Inc. (formerly known as
Ernest W. Hahn, Inc.), a California corporation.
1.12 "Hazardous Materials" means any chemical, substance,
object, conditions material or other substances defined or classified as
dangerous, hazardous, toxic or as a pollutant or contaminant by the Federal
Comprehensive Environmental Response Compensation and Liability Act, 42
U.S.C. Sections 9601 et seq., the regulations promulgated from time to time
thereunder, environmental laws administered by the Environmental Protection
Agency or its state equivalent, and the laws, ordinances, rules or
regulations of the State of Tennessee, or any other Governmental Authority.
1.13 "HMC" means Hahn Mortgage Company, a California
corporation and successor-in-interest to Memphis.
1.14 "Memphis" means Mall of Memphis Associates, a Tennessee
limited partnership.
1.15 "Permits" means all those certain building and other
permits, licenses, approvals, certificates of occupancy and other
certificates issued or granted to Associates in connection with the
Property.
1.16 "Personal Property" means all tangible and intangible
personal property owned by Associates for use in connection with the
operation of the Property.
1.17 "Project Documents" means all financial and other books
and records maintained by Associates as of the date of this Agreement in
connection with the operation of the Property and all leases, insurance
policies, plans, specifications, engineering, soils and geologic reports,
Hazardous Materials studies and reports, surveys, contracts, agreements and
other documents concerning the construction, reconstruction, maintenance,
repair, management, leasing or operation of the Property which are within
the possession of or reasonably available to Associates (including, without
limitation, all Permits).
1.18 "REA Assignment" means that certain Assignment and
Assumption of REA Rights and Obligations in the form attached hereto as
EXHIBIT G.
<PAGE>
1.19 "Tenant Deposits" means all sums deposited with
Associates and/or the manager of the Property in connection with and
pursuant to the terms and conditions of any lease for all or any portion of
the Property.
1.20 "Termination Agreement" means a Termination Agreement to
be executed by American, TIAA, Carlyle, Hahn, Associates and HMC in
substantially the same form as attached hereto as EXHIBIT H.
1.21 "Title Company" means Chicago Title Insurance Company, a
Missouri corporation.
1.22 "Title Policy" means an ALTA Owner's Policy of Title
Insurance to be issued by Title Company to American.
2. ACKNOWLEDGMENT OF INDEBTEDNESS: CLAIMS. Associates hereby
acknowledges for the benefit of American only that it is indebted to the
holder of the Note in the sum of at least Forty-Two Million Four Hundred
Twenty-Two Thousand Two Dollars ($42,422,002) as of April 14, 1999.
3. CONVEYANCE. Subject to the full satisfaction as of the date of
the "Closing" (as defined below) of the conditions precedent set forth in
SECTION 9, Associates agrees to:
3.1 Quitclaim to American, by execution and recordation of
the Deed, fee title to the Property;
3.2 Without recourse to Associates, grant, convey and
transfer to American, by execution and delivery of the Bill of Sale, all of
Associates' right, title and interest in and to the Personal Property, if
any;
3.3 Without recourse to Associates, assign absolutely to
American, by execution and delivery of the Assignment and the REA
Assignment, all of Associates' right, title, and interest, if any, in and
to the following to the extent the same are assignable: (i) any and all
Permits; (ii) any and all proceeds, or rights to proceeds, from any
insurance policies for the Property resulting from any claim made on or
against any such policies (net of any amounts payable to third-parties in
connection with any such claim); (iii) any and all utility or service
contracts; (iv) any and all existing warranties on the Property; (v) all
plans, tests, soil tests, reports, specifications, engineering plans and
reports, surveys and any other architectural or engineering data which
concern the Property and which are in the possession of Associates; (vi)
any and all proceeds or rights to proceeds in any threatened or pending
condemnation proceedings or proceedings in lieu thereof; (vii) subject to
the provisions of SECTION 7(b) regarding refunds of real estate taxes, any
and all causes of action which Associates has against anyone, now or
hereafter arising, with respect to the Property; (viii) any and all
intangible property used in connection with the operation, leasing or
ownership of the Property; and (ix) any and all leases for all or any
portion of the Property; and
3.4 Execute and deliver to American (through Escrow Holder)
the other Transfer Documents to which it is a party.
4. EXECUTION AND DELIVERY OF THE GENERAL RELEASE. Subject to the
full satisfaction on or before the date of the Closing of the conditions
precedent set forth in SECTION 8, American agrees to:
4.1 Accept the Deed, the Assignment, the REA Assignment and
the Bill of Sale and assume Associates' obligations and liabilities in
connection therewith as provided therein;
<PAGE>
4.2 Forebear from commencing and/or continuing foreclosure
proceedings under the Deed of Trust; and
4.3 Execute and deliver to Associates (through Escrow Holder)
the other Transfer Documents to which American is a party.
5. CLOSING.
5.1 CLOSING DEADLINE. The transactions contemplated by this
Agreement shall close (the "Closing") by recordation of the Deed in the
Land Records of Shelby County, Tennessee as soon as possible after the
satisfaction of all the conditions in SECTIONS 8 AND 9, but in no event
later than 5:00 p.m. (Memphis, Tennessee time) on May 7, 1999 (the "Closing
Deadline"). Time is specifically of the essence as to the Closing
Deadline.
5.2 DELIVERIES BY AMERICAN. At least one (1) day prior to
the Closing Deadline (the "Deposit Date"), American shall deliver to
Escrow:
(i) Two (2) counterpart originals of the Assignment
duly executed by American;
(ii) Three (3) counterpart originals of the REA
Assignment duly executed by American and acknowledged;
(iii)Three (3) counterpart originals of the Lender
General Release duly executed by American and TIAA (it being acknowledged
and agreed that the execution of the Lender General Release by TIAA shall
be a condition to Closing benefitting American and Associates);
(iv) Six (6) counterpart originals of the Termination
Agreement duly executed by American and TIAA (it being acknowledged and
agreed that the execution of the Termination Agreement by TIAA shall be a
condition to Closing benefitting American and Associates but neither
American nor Associates shall be liable if TIAA fails to execute the
Termination Agreement); and
(v) Any other documents reasonably required by Escrow
Holder, Title Company and/or Associates provided that any such documents
impose no liability or risk on American.
5.3 DELIVERIES BY ASSOCIATES. On or prior to the Deposit
Date, Associates shall deliver to Escrow:
(i) One (1) original of the Deed duly executed by
Associates and acknowledged;
(ii) Two (2) counterpart originals of the Assignment
duly executed by Associates;
(iii) Three (3) counterpart originals of the REA
Assignment duly executed by Associates and acknowledged;
(iv) One (1) original of the Bill of Sale duly executed
by Associates;
(v) Three (3) counterpart originals of the Borrower
General Release duly executed by Associates;
(vi) One (1) original Non-Foreign Affidavit duly
executed by Associates;
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(vii) Six (6) counterpart originals of the Termination
Agreement duly executed by Associates, Carlyle, Hahn and HMC (it being
acknowledged and agreed that the execution of the Termination Agreement by
Carlyle, Hahn and HMC shall be a condition to Closing benefitting
Associates and American but neither Associates nor American shall be liable
if Hahn and/or HMC fail to execute the Termination Agreement); and
(viii) Any other documents reasonably required by Escrow
Holder, Title Company and/or American provided that any such documents
impose no liability or risk on Associates.
5.4 INSPECTION AND DELIVERY.
(i) Associates shall, from and after the date hereof,
make the originals (if available, otherwise legible copies) of the Project
Documents available to American at the Property for American's review and
inspection during Associates' normal business hours. Furthermore,
concurrently with the Closing, Associates shall deliver the originals (if
available, otherwise legible copies) of the Project Documents to American
at the Property.
(ii) Associates shall not, from and after the date
hereof, unreasonably delay or withhold its consent to American's physical
investigation of the Property or to American's interaction with tenants of
the Property for purposes of conducting interviews and/or obtaining
estoppel certificates and subordination, non-disturbance and attornment
agreements as provided in such tenants' leases.
(iii) American's rights under this SECTION 5.4 are
subject to the terms and conditions of the Confidentiality Agreement and
American's obligations under the Confidentiality Agreement shall survive
the Closing.
6. ACTIONS AT CLOSING. At the Closing:
6.1 Title Company shall cause the Deed and one (1) fully-
executed original of the REA Assignment to be recorded in the Land Records
of Shelby County, Tennessee;
6.2 Escrow Holder shall deliver the following documents as
follows:
(i) To American, one (1) fully-executed original of the
Assignment, the REA Assignment, the Borrower General Release, the
Termination Agreement, the Bill of Sale and the Non-Foreign Affidavit; a
conformed copy of the recorded Deed and REA Assignment; and one (1)
original and two (2) copies of the Title Policy.
(ii) To Associates, one (1) fully-executed original of
the Assignment, the REA Assignment and the Lender General Release; four (4)
fully-executed originals of the Termination Agreement; and a conformed copy
of the recorded Deed and REA Assignment.
(iii) To TIAA, one (1) fully-executed original of the
Borrower General Release and the Termination Agreement.
<PAGE>
7. CLOSING COSTS AND PRORATIONS. Costs incidental to the Closing
shall be paid as follows:
7.1 American shall pay all costs associated with the Closing
or otherwise associated with this transaction, other than the fees of
Associates' counsel and other consultants, including, without limitation,
the premium for the Title Policy, all fees of the Escrow, transfer taxes,
survey costs, and recording fees.
7.2 Real estate taxes and rents actually received will be
prorated at Closing to the extent of cash on hand. In addition, to the
extent of cash on hand, Associates will deliver to American at Closing any
and all Tenant Deposits. Otherwise, there shall be no prorations of any
kind (nor shall there be any re-prorations after the Closing regardless of
any errors) and Associates shall have no obligation to pay any additional
amounts to American, whether or not any such amounts are delinquent;
provided, however, that any rents or other receivables actually received by
Associates after Closing shall be promptly remitted to American regardless
of whether the rent or receivable received was for a period prior to or
after the Closing and any rents or other receivables actually received by
American after Closing shall be retained by American (and shall not be
remitted to Associates) regardless of whether the rent or receivable
received was for a period prior to or after the Closing. Associates shall
pay all remaining cash on hand at Closing to TIAA (subject to the terms and
conditions of that certain Cash Holdback Agreement between Associates and
TIAA), and American shall not be entitled to receive any of such cash,
except as provided in the Loan Purchase Agreement (which shall not involve
Associates), regardless of the existence of outstanding claims and bills
(provided, however, that Associates shall continue to pay prior to Closing
any such claims and bills received by Associates prior to Closing in the
same manner as claims and bills were paid prior to the date hereof).
Associates shall have no right to attempt to collect, in any manner
whatsoever, any rents or receivables which were past due or delinquent at
Closing (the right to collect such amounts to be assigned to American at
Closing) and Associates hereby agrees to cooperate with American (at no
cost to Associates) in its efforts to collect any such amounts.
Notwithstanding the foregoing, to the extent Associates, American and/or
TIAA actually receive any refunds for real estate taxes paid with respect
to the Property for the tax years 1990 through 1999, and to the extent such
refunds actually received are not required to be remitted to tenants of the
Property under their leases or paid to attorneys in connection with the
legal actions commenced to obtain such refunds (the amount of any such
remittances and/or payments to be reasonably approved by Associates or
TIAA, as applicable, prior to any such remittance and/or payment), such
refunds actually received, to the extent related to the tax years 1990
through 1997, shall be delivered to Associates or retained by Associates,
as the case may be, such refunds actually received, to the extent related
to the tax year 1998, shall be delivered to TIAA or retained by TIAA, as
the case may be, or such refunds actually received, to the extent related
to the tax year 1999, shall be delivered to American or retained by
American, as the case may be, and prorated between American and TIAA.
American shall, at the reasonable request of Associates and/or TIAA,
execute (either alone or with Associates and/or TIAA) and deliver to
Associates and/or TIAA any and all additional instruments and documents
(provided that such instruments and documents shall impose no liability or
risk on American) which from time to time may be necessary or desirable to
obtain refunds for real estate taxes paid with respect to the Property for
the tax years 1990 through 1999.
8. AMERICAN'S CONDITIONS. The following shall constitute
conditions precedent to American's obligation to consummate the
transactions contemplated by this Agreement:
8.1 American shall have acquired the Loan.
<PAGE>
8.2 American shall have received (i) a written confirmation
from Escrow Holder that the documents to be deposited in Escrow by
Associates on or before the Deposit Date as described in SECTION 5.3 were
so deposited, (ii) a written commitment from Title Company to issue the
Title Policy with endorsements and exceptions to coverage approved by
American in its sole and absolute discretion, and (iii) a partnership
resolution of Associates approving the terms and conditions of this
Agreement and authorizing the general partners of Associates to execute and
deliver this Agreement and the Transfer Documents;
8.3 American shall have reviewed and approved the Project
Documents in American's sole and absolute discretion;
8.4 All of Associates' representations and warranties set
forth in SECTION 10 shall be true and correct as of the Closing;
8.5 Associates shall have performed all of its obligations
under this Agreement;
8.6 The Termination Agreement has been executed by all
parties thereto; and
8.7 Associates, American and TIAA shall have signed, or
otherwise approved in writing, an estimated closing statement prepared by
Escrow Holder showing all amounts set forth in SECTION 7.
9. ASSOCIATES' CONDITIONS. The following shall constitute
conditions precedent to Associates' obligation to consummate the
transactions contemplated by this Agreement:
9.1 American shall have acquired the Loan.
9.2 Associates shall have received a written confirmation
from Escrow Holder that the documents to be deposited in Escrow by American
on or before the Deposit Date as described in SECTION 5.2 were so
deposited;
9.3 American shall have performed its obligations under this
Agreement;
9.4 The Termination Agreement has been executed by all
parties thereto; and
9.5 Associates, American and TIAA shall have signed, or
otherwise approved in writing, an estimated closing statement prepared by
Escrow Holder showing all amounts set forth in SECTION 7.
Upon Closing, the conditions precedent described in SECTIONS 8 AND 9
shall be deemed fully satisfied or waived.
10. ASSOCIATES' REPRESENTATIONS AND WARRANTIES. Associates hereby
represents and warrants to American, to the actual knowledge of Glenn Emig,
with no duty to investigate, as follows:
<PAGE>
10.1 The execution, delivery, and performance of this
Agreement and the Transfer Documents to which Associates is a party (i)
have been, or will be, duly authorized and do not, and will not, require
the consent or approval of any Governmental Authority or any other person
or entity, and (ii) are not, and will not be, in contravention of or in
conflict with any law or regulation or any term or provision of the
partnership agreement for Associates or any other agreement to which
Associates is a party.
10.2 Neither the execution of this Agreement and the Transfer
Documents to which Associates is a party, nor the transfer of Associates'
interest in the Property, nor the performance of the other transactions
contemplated by this Agreement is being consummated by Associates with any
intent to hinder, delay or defraud any person or entity to whom Associates
is now indebted or may hereafter become indebted.
10.3 Associates has no intention to file any voluntary
petition in bankruptcy, or to seek relief, protection, reorganization,
liquidation, dissolution or similar relief for debtors under any Federal,
state or local law, or in equity, or to take any action which would
directly or indirectly cause the Property or any portion thereof to become
the property of any bankrupt estate or the subject of any bankruptcy,
dissolution or insolvency proceedings.
10.4 Other than with respect to the payments to be made in
connection with the Loan, Associates is solvent as of the date hereof and
will be solvent both as of and immediately after the Closing.
10.5 As a result of the receipt by Associates of the
consideration to be given by American pursuant to this Agreement
(including, without limitation, the execution of the Lender General Release
and the Termination Agreement by American and TIAA), in Associates'
opinion, Associates will receive a reasonably equivalent value in exchange
for the transfer of its right, title and interest in and to the Property.
11. NEW AGREEMENTS. Associates hereby agrees that it shall not,
from and after the date of this Agreement, enter into any material leases,
contracts or other agreements concerning the Property which would extend
beyond the Closing without first obtaining the express written consent of
American (which consent shall not be unreasonably withheld or delayed);
provided, however, that American's consent shall not be required as to the
termination of any management agreement affecting the Property. Failure by
American to respond to Associates' written request for any such consent
within ten (10) days of American's receipt of the same shall be deemed to
be American's consent thereto.
12. DISSOLUTION. To the extent that Associates has not begun
dissolution proceedings (or has begun but is not prosecuting such
proceedings to completion in accordance with all applicable laws and with
due diligence), Associates covenants and agrees that it will not be active
in any new business venture (including, without limitation, that Associates
will not acquire or become responsible for any new debt, obligations or
liabilities or participate in the ownership, management or operation of any
new business or property).
<PAGE>
13. PROPERTY "AS IS". EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT ASSOCIATES IS NOT MAKING AND
HAS NOT AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR
CHARACTER, EXPRESSED OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING,
BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ZONING, TAX
CONSEQUENCES, LATENT OR PATENT PHYSICAL CONDITION, UTILITIES, OPERATING
HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE
OF THE PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR COMPLETENESS
OF THE PROPERTY DOCUMENTS OR ANY OTHER INFORMATION PROVIDED BY OR ON BEHALF
OF ASSOCIATES TO AMERICAN, OR ANY OTHER MATTER OR THING REGARDING THE
PROPERTY. AMERICAN ACKNOWLEDGES AND AGREES THAT UPON CLOSING ASSOCIATES
SHALL SELL AND CONVEY TO AMERICAN AND AMERICAN SHALL ACCEPT THE PROPERTY
"AS IS, WHERE IS, WITH ALL FAULTS", EXCEPT TO THE EXTENT EXPRESSLY PROVIDED
OTHERWISE IN THIS AGREEMENT. AMERICAN HAS NOT RELIED AND WILL NOT RELY ON,
AND ASSOCIATES IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESSED OR IMPLIED
WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION
PERTAINING TO THE PROPERTY OR RELATING THERETO (INCLUDING SPECIFICALLY,
WITHOUT LIMITATION, PROPERTY INFORMATION PACKAGES DISTRIBUTED WITH RESPECT
TO THE PROPERTY) MADE OR FURNISHED BY ASSOCIATES, THE MANAGER OF THE
PROPERTY, OR ANY REAL ESTATE BROKER OR AGENT REPRESENTING OR PURPORTING TO
REPRESENT ASSOCIATES, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY,
ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT.
AMERICAN REPRESENTS TO ASSOCIATES THAT AMERICAN HAS CONDUCTED, OR WILL
CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING
BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS
AMERICAN DEEMS NECESSARY TO SATISFY ITSELF AS TO THE CONDITION OF THE
PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN
WITH RESPECT TO ANY HAZARDOUS MATERIALS ON OR DISCHARGED FROM THE PROPERTY,
AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR
ON BEHALF OF ASSOCIATES OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO,
OTHER THAN SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF ASSOCIATES AS
ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. UPON CLOSING, AMERICAN SHALL
ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO,
CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY
NOT HAVE BEEN REVEALED BY AMERICAN'S INVESTIGATIONS, AND AMERICAN, UPON
CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED
ASSOCIATES (AND ASSOCIATES' OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS,
EMPLOYEES AND AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES
OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES,
LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT COSTS)
OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH AMERICAN MIGHT
HAVE ASSERTED OR ALLEGED AGAINST ASSOCIATES (AND ASSOCIATES' OFFICERS,
DIRECTORS, SHAREHOLDERS, PARTNERS, EMPLOYEES AND AGENTS) AT ANY TIME BY
REASON OF OR ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR
PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS (INCLUDING, WITHOUT
LIMITATION, ANY ENVIRONMENTAL LAWS) AND ANY AND ALL OTHER ACTS, OMISSIONS,
EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY. AMERICAN AGREES
THAT SHOULD ANY CLEANUP, REMEDIATION OR REMOVAL OF HAZARDOUS MATERIALS OR
OTHER ENVIRONMENTAL CONDITIONS ON THE PROPERTY BE REQUIRED AFTER THE DATE
OF CLOSING, SUCH CLEAN-UP, REMOVAL OR REMEDIATION SHALL BE THE
RESPONSIBILITY OF AND SHALL BE PERFORMED AT THE SOLE COST AND EXPENSE OF
AMERICAN.
14. PRESERVATION OF RIGHTS REMEDIES AND DEFENSES. If, at any time
following the Closing (a) Associates undertakes any legal proceeding to
rescind or set aside this Agreement or any of the Transfer Documents to
which it is a party for any reason whatsoever, including, without
limitation, any claim that the transaction herein contemplated constitutes
a preference or a fraudulent conveyance; or (b) the Property, or any part
thereof, is required to be returned by American to Associates and is
returned to Associates for any reason, including, without limitation, the
insolvency, bankruptcy or reorganization of Associates (or in the event the
conveyances herein are held to be preferential or fraudulent), then
Associates' liability under the Loan Documents and all rights of American
thereunder shall be revived and reinstated automatically without need of
any further action by any party and, upon such a return of the Property to
Associates, American's covenant not to sue contained in the Lender General
Release shall be of no force or effect and shall be void ab initio.
15. INTENTIONALLY OMITTED.
16. REMEDIES ARE CUMULATIVE. No waiver of any default shall be
implied from any omission by American or Associates to take action on
account of such default, even if such default persists or is repeated. No
waiver of any default shall affect any default other than the default
expressly waived, and any such waiver shall be operative only for the time
and to the extent stated. No waiver of any provision of any of the
Transfer Documents shall be construed as a waiver of any subsequent breach
of the same provision. American's consent to or approval of any act by
Associates requiring further consent or approval shall not be deemed to
waive or render unnecessary American's consent to or approval of any
subsequent act. Associates' consent to or approval of any act by American
requiring further consent or approval shall not be deemed to waive or
render unnecessary Associates' consent to or approval of any subsequent
act.
17. UNCONDITIONAL AND ABSOLUTE TRANSFER. Except as otherwise
expressly provided herein to the contrary, the grant, assignment,
conveyance and transfer of the Property shall be unconditional and absolute
and Associates shall not have (and does not reserve) any right, title or
interest of any kind whatsoever in or to any part of the Property. Unless
American's reservation of rights and remedies in SECTION 14 becomes
operative, following the Closing, Associates forever waives and releases
any and all rights of redemption and other rights, if any, which it might
have or have had in connection with the Property, whether arising from the
grant, assignment, conveyance and transfer of the Property described
herein, or arising from any foreclosure sale which American might have
elected to hold or may hereinafter hold pursuant to the Deed of Trust.
Except as contemplated hereby, American does not hereby assume, directly or
indirectly, any liability, obligation, duty or responsibility whatsoever
for the payment, discharge or other resolution of any liability,
obligation, indebtedness, lien, security interest, encumbrance, claim or
other problem, condition or matter which has been or may hereafter be
created or assumed by Associates, anyone associated with Associates or any
of Associates' predecessors in interest or which may otherwise presently
exist with respect to the Property. American may at any time after the
Closing sell, transfer, encumber, lease, assign or abandon all or any
portion of the Property and may take or omit to take any action which
American in its sole and absolute discretion may deem to be in its best
interest, and Associates shall have no right, title or interest in or to
any portion of any consideration received by American in connection with
any such sale, transfer, encumbrance, lease, assignment or abandonment of
the Property.
18. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns. American may, at any time or from time to time,
assign or otherwise transfer all of its rights and/or obligations under
this Agreement to any entity affiliated with AMP and/or American and
Associates hereby consents and agrees to be bound by any such assignment or
transfer. Such an assignment or transfer of this Agreement by American
shall release American of any liability hereunder which accrues after the
date of such assignment or transfer.
<PAGE>
19. COUNTERPARTS. This Agreement may be executed by facsimile in
any number of counterparts, each of which shall constitute an original, but
all of which, when taken together, shall constitute one and the same
instrument.
20. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Tennessee.
21. ENTIRE AGREEMENT; CONFLICTS; EXHIBITS. This Agreement, the
Termination Agreement, the Borrower General Release, the Lender General
Release and the Confidentiality Agreement contain the entire agreement
between American and Associates with respect to the Property, and
Associates' obligations under the Loan Documents, and any prior
representations, negotiations or agreements between the parties hereto are
merged into this Agreement. In the event of a conflict between the terms
and conditions of this Agreement and the terms and conditions of the
Termination Agreement, the Borrower General Release, the Lender General
Release and/or the Confidentiality Agreement, the terms and conditions of
this Agreement shall prevail as between American and Associates. All
Exhibits attached hereto are incorporated herein by this reference.
22. MERGER. It is the intent of the parties that upon execution,
delivery, acceptance and recordation of the Deed and the consummation of
the transaction contemplated by this Agreement the Deed shall merge with
the Deed of Trust thereby extinguishing the lien, charge and encumbrance of
the Deed of Trust and the other Loan Documents against the Property.
23. AMENDMENTS: SURVIVAL. This Agreement may not be amended except
by an amendment in writing signed by all parties hereto. This Agreement
and the covenants, representations and warranties contained herein shall
survive the Closing.
24. BANKRUPTCY. Associates agrees that, should a voluntary
bankruptcy be filed by Associates, Associates shall not contest a motion
brought by American or its lender to dismiss, abstain or lift the automatic
stay based upon this Agreement and the settlement contemplated hereunder.
Associates agrees that, should an involuntary bankruptcy be filed against
Associates, Associates shall not contest a motion brought by American or
its lender to dismiss, abstain or lift the automatic stay as to the
Property, based upon this Agreement and the settlement contemplated
hereunder. The provisions of this SECTION 24 shall survive the Closing for
four (4) years.
25. FURTHER ASSURANCES. At any time or from time to time upon the
request of American or Associates, the applicable other party shall execute
all such additional documents and instruments and shall do such additional
acts and things as American or Associates, as applicable, may reasonably
request in order to fully effectuate the purposes of this Agreement at no
cost or risk to either such party.
26. LEGAL FEES. In the event of any controversy or dispute arising
out of this Agreement, the prevailing party or parties shall be entitled to
have and recover from the other party all attorneys' fees, witness fees,
court costs and other litigation expenses incurred by the prevailing party,
as determined by the court (including, all attorneys' fees, court costs and
other expenses incurred by such party in connection with any appeal, any
insolvency, bankruptcy, reorganization, arrangement or other similar
proceeding, and in connection with the enforcement of any judgement).
<PAGE>
27. NOTICES. Any notice or communication required or permitted to
be given hereunder shall be given in writing and shall be delivered (a) in
person, (b) by certified mail, postage prepaid, return receipt requested,
(c) by facsimile, or (d) by a commercial overnight courier that guarantees
next day delivery and provides a receipt, and addressed to the parties at
the addresses stated below, or at such other address as either party may
hereafter notify the other in writing as aforementioned.
To Associates: Mall of Memphis Associates
c/o JMB Realty Corporation
900 North Michigan Avenue
Chicago, Illinois 60611
Attention: Mr. Glenn Emig
Facsimile: (312) 915-2310
With a copy to: Pircher, Nichols & Meeks
1999 Avenue of the Stars, Suite 2600
Los Angeles, California 90067
Attention: Real Estate Notices (SAH)
Facsimile: (310) 201-8922
To American: The American Mall of Memphis, LLC
c/o Memphis AMP, LLC
15303 Ventura Boulevard, Suite 1520
Sherman Oaks, California 91403
Attention: Mr. Tony Quintero
Facsimile: (818) 789-4030
With a copy to: Kulik, Gottesman & Mouton
1880 Century Park East, Suite 1150
Los Angeles, California 90067
Attention: Kent Y. Mouton, Esq.
Facsimile: (310) 557-0224
To TIAA: Teachers Insurance and Annuity Association
730 Third Avenue
New York, New York 10017-3206
Attention: Ms. Jennifer Hochglaube
Facsimile: (212) 916-6320
With a copy to: Teachers Insurance and Annuity Association
730 Third Avenue
New York, New York 10017-3206
Attention: Randi B. Margolin, Esq.
Facsimile: (212) 953-9879
To Escrow Holder: Chicago Title Insurance Company
6060 Poplar Avenue, Suite LL-37
Memphis, Tennessee 38119
Attention: Ms. Mary Jane Beddow
Facsimile: (901) 821-0400
Service of any such notice or demand so made shall be deemed
effective on the day of actual delivery as evidenced by confirmed
answerback if by facsimile, as shown by the addressee's return receipt if
by certified mail, as confirmed by the courier service if by courier or the
expiration of three (3) business days after the date mailed (whichever is
earlier), except that service of any notice of default or notice of sale
provided or required by law shall, if mailed, be deemed effective on the
date of mailing.
<PAGE>
28. RISK OF LOSS. In the event of a material casualty or
condemnation affecting the Property prior to the Closing, American shall
have the right, in its sole and absolute discretion, to terminate this
Agreement.
29. LIMITATION ON RIGHTS AND REMEDIES. Notwithstanding anything to
the contrary contained in this Agreement or any of the Transfer Documents,
American's rights and remedies in the event Associates fails to comply with
any obligation of Associates under this Agreement prior to the Closing
shall be limited to the right to terminate this Agreement before the
Closing; provided, however, that if Associates fails to make the
conveyances required by this Agreement, American shall also be entitled to
the remedy of specific performance.
30. SEVERABILITY. In the event any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement,
but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
31. LANGUAGE OF AGREEMENT. The language of this Agreement shall be
construed as a whole according to its fair meaning, and not strictly for or
against any party.
32. CAPTIONS. Any captions to, or headings of, the Sections of
this Agreement are solely for the convenience of the parties hereto, are
not a part of this Agreement, and shall not be used for the interpretation
or the determination of the validity of this Agreement or of any provision
hereof.
33. TIME OF ESSENCE. Time is of the essence of each and every
term, condition, obligation and provision of this Agreement.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
ASSOCIATES: MALL OF MEMPHIS ASSOCIATES,
an Illinois general partnership
By: Carlyle Real Estate Limited
Partnership - XI,
an Illinois limited partnership,
its General Partner
By: JMB Realty Corporation,
a Delaware corporation,
its General Partner
By: _______________________
Name: _______________________
Its: _______________________
By: JMB Realty Corporation,
a Delaware corporation,
its General Partner
By: _______________________
Name: _______________________
Its: _______________________
AMERICAN: THE AMERICAN MALL OF MEMPHIS, LLC,
a California limited liability company
By: Memphis AMP, LLC,
a California limited liability company,
its Manager
By: ___________________________
Name:___________________________
Its: ___________________________
By: ___________________________
Name:___________________________
Its: ___________________________
<PAGE>
ACCEPTANCE BY ESCROW HOLDER:
Dated: May ___, 1999
The undersigned hereby acknowledges that it has received a fully-
executed or executed counterparts of the foregoing Agreement for Deed in
Lieu of Foreclosure and agrees to act as Escrow Holder thereunder and to be
bound by and perform the obligations thereof.
CHICAGO TITLE INSURANCE COMPANY
By: _______________________
Name: _______________________
Its: _______________________
<PAGE>
ASSIGNMENT OF LEASES, CONTRACTS AND PERMITS
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged, MALL OF MEMPHIS ASSOCIATES, an Illinois
general partnership ("Assignor"), does hereby, as of the date set forth
below, assign, transfer and set over to THE AMERICAN MALL OF MEMPHIS, LLC,
a California limited liability company ("Assignee"), without warranty or
recourse, all of Assignor's right, title and interest, if any, in and to
the items described in EXHIBIT A attached hereto, to the extent assignable
(collectively, the "Property"), and Assignee does hereby, from and after
the date set forth below, accept such assignment and agree to be bound by
and perform all of Assignor's duties, covenants and obligations with
respect to the Property which are to be performed in the first instance on
or after the date set forth below.
1. Assignor represents and warrants to Assignee that the execution
and delivery of this Assignment has been duly authorized by Assignor.
2. Assignee represents and warrants to Assignor that the execution
and delivery of this Assignment has been duly authorized by Assignee.
3. This Assignment is an absolute and outright assignment of
Assignor's right, title, and interest in and to the Property which shall be
effective from and after the date set forth below.
4. This Assignment may be relied upon as conclusive evidence that
the Property has been assigned and set over to Assignee to the extent the
Property is assignable.
5. Assignor hereby represents and warrants to Assignee, to the
actual knowledge of Glenn Emig, with no duty to investigate, that no
previous assignment of Assignor's interest in the Property has been made
other than a collateral assignment to Teachers Insurance and Annuity
Association of America.
6. This Assignment shall be binding upon and inure to the benefit
of the successors and assigns of Assignor and Assignee.
7. This Assignment shall be governed by and construed and
interpreted in accordance with the laws of the State of Tennessee.
8. This Assignment may be executed in any number of counterparts,
each of which shall be deemed an original and all of which shall constitute
one and the same instrument, with the same effect as if all parties had
signed the same signature page.
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<PAGE>
IN WITNESS WHEREOF, this Assignment has been executed by Assignor as
of this 4th day of May, 1999.
ASSIGNOR: MALL OF MEMPHIS ASSOCIATES,
an Illinois general partnership
By: Carlyle Real Estate Limited
Partnership - XI,
an Illinois limited partnership,
General Partner
By: JMB Realty Corporation,
a Delaware corporation,
General Partner
By: _______________________
Name: _______________________
Its: _______________________
ASSIGNEE: THE AMERICAN MALL OF MEMPHIS, LLC,
a California limited liability company
By: Memphis AMP, LLC, a California
limited liability company,
its Manager
By: _______________________
Name: _______________________
Its: _______________________
By: _______________________
Name: _______________________
Its: _______________________
<PAGE>
EXHIBIT A
TO
ASSIGNMENT OF LEASES,
CONTRACTS AND PERMITS
(A) All contracts and agreements relating to or required for the
development, refurbishment, use, occupancy or operation of that certain
real property commonly known as Mall of Memphis, Memphis, Tennessee (the
"Real Property"), including, without limitation, all maintenance, service
and utility contracts;
(B) All authorizations, approvals, permits, variances and land use
entitlements relating to or required for the refurbishment use, occupancy
or operation of the Real Property;
(C) All warranties, guaranties and indemnities (including, without
limitation, those for workmanship, materials and performance) that now
exist or that hereafter may exist, from, by or against any contractor,
subcontractor, manufacturer, supplier, laborer or other service provider
relating to the Real Property;
(D) All plans, drawings and specifications for any improvements
located on the Real Property; and
(E) All other intangible property relating to or required for the
refurbishment, use, occupancy or operation of the Real Property, including,
without limitation, any and all trade names, trademarks, styles, logotypes,
copyrights or fictitious business names used in connection with the
ownership, leasing or operation of the Real Property.
(F) All leases, lease guaranties, if any, and all lease security
deposits with respect to the Real Property.
<PAGE>
BILL OF SALE
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged, MALL OF MEMPHIS ASSOCIATES, an Illinois
general partnership ("Transferor"), does hereby, as of the date set forth
below, transfer, convey and sell to THE AMERICAN MALL OF MEMPHIS, LLC, a
California limited liability company, without warranty or recourse, all of
Transferor's rights, title and interest in and to (collectively, the
"Personal Property") all tangible and intangible personal property,
including, without limitation, all furniture, fixtures, machinery and
equipment, owned by Transferor in connection with the ownership,
maintenance and/or operation of that certain real property commonly known
as Mall of Memphis, Memphis, Tennessee (the "Property").
1. Transferor represents and warrants to Transferee that the
execution and delivery of this Bill of Sale has been duly authorized by
Transferor.
2. This Bill of Sale is an absolute and outright transfer,
conveyance, and sale of title to the Personal Property which shall be
effective from and after the date set forth below.
3. This Bill of Sale may be relied upon as conclusive evidence
that the Personal Property has been transferred, conveyed and sold
Transferee.
4. Transferor hereby represents and warrants to Transferee, to the
actual knowledge of Glenn Emig, with no duty to investigate, that no
previous transfer, conveyance or sale of Transferor's interest in the
Personal Property has been made other than a collateral assignment to
Teachers Insurance and Annuity Association of America.
5. This Bill of Sale shall be binding upon and inure to the
benefit of the successors and assigns of Transferor and Assignee.
6. This Bill of Sale shall be governed by and construed and
interpreted in accordance with the laws of the State of Tennessee.
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<PAGE>
IN WITNESS WHEREOF, this Bill of Sale has been executed by Transferor
on this 4th day of May, 1999.
TRANSFEROR: MALL OF MEMPHIS ASSOCIATES,
an Illinois general partnership
By: Carlyle Real Estate Limited
Partnership - XI,
an Illinois limited partnership,
General Partner
By: JMB Realty Corporation,
a Delaware corporation,
General Partner
By: _______________________
Name: _______________________
Its: _______________________
<PAGE>
GENERAL RELEASE
KNOW ALL MEN BY THESE PRESENTS:
That Mall of Memphis Associates, an Illinois general partnership
("Associates"), and anyone claiming through or under Associates
(collectively "Releasor"), for good and valuable consideration, the receipt
and adequacy of which is hereby acknowledged, hereby releases and forever
discharges Teachers Insurance and Annuity Association of America, a New
York corporation ("TIAA"), The American Mall of Memphis, LLC, a California
limited liability company ("AMM"), together with all of their affiliates,
subsidiaries, directors, officers, agents, partners, representatives and
employees, and their respective heirs, executors, administrators,
successors and assigns (collectively, "Releasee"), from any and all
actions, causes of action, suits, obligations, claims, contracts, promises,
covenants and demands whatsoever, in law or in equity, which Releasor, or
any of their respective heirs, executors, administrators, successors and
assigns, may have against Releasee by reason of any matter, cause or thing
done, omitted or suffered to be done by Releasee to the extent related to
or in any way connected with (a) that certain loan (the "Loan") made by
TIAA to Associates and secured by the property commonly known as the Mall
of Memphis in Memphis, Tennessee (the "Property"), (b) the documents
relating to the Loan, (c) the Property or (d) the relationship that
Releasor may have had with Releasee with respect thereto, relating to the
period of time prior to and including the date hereof, except for: (i) any
claim arising out of Associates's right to receive refunds, if any, for
real estate taxes paid with respect to the Property for the 1990 through
1997 tax years; (ii) any claims made by third parties against Releasor
based upon or arising out of acts or obligations of Releasee prior to the
date hereof (except third party claims based upon or arising out of
environmental conditions related to the Property); and (iii) any claim
arising out of or resulting from the breach of any agreement, covenant or
warranty or any misrepresentation of Releasee under this General Release
or, as to the parties thereto, that certain Agreement for Deed in Lieu of
Foreclosure (the "Deed in Lieu Agreement") by and between Associates and
AMM, or any other agreement executed pursuant to the Deed in Lieu
Agreement, including without limitation that certain "Termination
Agreement" (as defined in the Deed in Lieu Agreement).
Anything contained herein to the contrary notwithstanding, this
General Release shall be deemed to be void ab initio and of no further
force or effect if Releasor shall (a) commence any action, including,
without limitation, a case under the U.S. Bankruptcy Code or any other
debtor-relief law, to prevent or rescind the transfer of the Property, or
any part thereof, to AMM, or (b) become a party to a case under the U.S.
Bankruptcy Code or any other debtor-relief case or proceeding which results
in the prevention or rescission of the transfer of the Property, or any
part thereof, to AMM.
To the extent that the laws (including, without limitation, statutory
law, common law or otherwise) of Tennessee, New York or any other state
provide that the release described in the first paragraph of this General
Release (the "Release") does not extend to (i) claims which Releasor does
not know of or suspect to exist in its favor at the time of providing the
Release, or (ii) claims which were not contemplated by Releasor at the time
the Release was provided, Releasor hereby waives the protections of any
such laws in connection with the matters that are the subject of the
Release.
Associates hereby confirms and represents that it has willingly
signed this General Release without any coercion or unlawful action on the
part of Releasee or any other party designed to obtain such signature.
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<PAGE>
Executed on this 4th day of May, 1999.
ASSOCIATES: MALL OF MEMPHIS ASSOCIATES,
an Illinois general partnership
By: Carlyle Real Estate Limited
Partnership - XI,
an Illinois limited partnership,
its General Partner
By: JMB Realty Corporation,
a Delaware corporation,
its General Partner
By: _______________________
Name: _______________________
Its: _______________________
By: JMB Realty Corporation,
a Delaware corporation,
its General Partner
By: _______________________
Name: _______________________
Its: _______________________
<PAGE>
THIS INSTRUMENT PREPARED BY:
Owen P. Gross, Esq.
Kulik, Gottesman & Mouton, LLP
1880 Century Park East, Suite 1150
Los Angeles, California 90067-1611
________________________________________________________________________
QUITCLAIM DEED
--------------
Know all men by these presents, that MALL OF MEMPHIS ASSOCIATES, an
Illinois general partnership ("Grantor"), for and in consideration of no
cash, does hereby bargain, sell, remise, release, quitclaim and convey unto
THE AMERICAN MALL OF MEMPHIS, LLC, a California limited liability company,
the real estate located in the City of Memphis, County of Shelby, State of
Tennessee, as more particularly described on EXHIBIT A attached hereto.
IN WITNESS WHEREOF, Grantor has executed this Quitclaim Deed as of
May 3, 1999.
GRANTOR: MALL OF MEMPHIS ASSOCIATES,
an Illinois general partnership
By: Carlyle Real Estate Limited Partnership - XI,
an Illinois limited partnership,
its General Partner
By: JMB Realty Corporation,
a Delaware corporation,
its General Partner
By: _______________________
Name:_______________________
Its: _______________________
State of ___________________
No actual cash consideration was paid in
County of ___________________ connection
with this transfer
Subscribed and sworn to before me ___________________________
the _____ day of __________, 1999. Affiant
___________________________
Notary Public
My Commission Expires: ___________________________
(Affix Seal)
<PAGE>
This is improved property known as:
4451 Mall of Memphis
Memphis, Tennessee 38118
Wherever used, the singular number shall include the plural, the
plural the singular and the use of any gender shall be applicable to all
genders.
Witness our hand this _____ day of __________, 1999, the corporate
party, if any, having caused its name to be signed hereto by its duly
authorized officer on such day and date.
State of ___________________
County of ___________________
Before me, ___________________________, a Notary Public in and for
such County and State, personally appeared ___________________________,
with whom I am personally acquainted (or proved to me on the basis of
satisfactory evidence), and who, upon oath, acknowledged himself to be
___________________ of JMB Realty Corporation, the general partner of
Carlyle Real Estate Limited Partnership - XI, the general partner of the
within named bargainor, and that ___________________________ as such
___________________ being authorized so to do, executed the foregoing
instrument for the purpose therein contained.
Witness my hand and official seal, at office in
_________________________________ this _____ day of __________, 1999.
___________________________
Notary Public
My Commission Expires: ___________________________
(Affix Seal)
ADDRESS OF NEW OWNER,
WHEN RECORDED MAIL TO AND
MAIL TAX STATEMENTS TO:
The American Mall of Memphis, LLC
c/o Memphis AMP, LLC
15303 Ventura Boulevard, Suite 1520
Sherman Oaks, California 91403
Attention: Mr. Tony Quintero
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
(See Attached)
<PAGE>
GENERAL RELEASE
KNOW ALL MEN BY THESE PRESENTS:
That Teachers Insurance and Annuity Association of America, a New
York corporation ("TIAA"), The American Mall of Memphis, LLC, a California
limited liability company ("AMM"), and anyone claiming through or under
TIAA and/or AMM (collectively "Releasor"), for good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged,
hereby release and forever discharge Mall of Memphis Associates, an
Illinois general partnership ("Associates"), together with all of its
affiliates, subsidiaries, directors, officers, agents, partners,
representatives and employees, and their respective heirs, executors,
administrators, successors and assigns (collectively, "Releasee"), from any
and all actions, causes of action, suits, obligations, claims, contracts,
promises, covenants and demands whatsoever, in law or in equity, which
Releasor, or any of their respective heirs, executors, administrators,
successors and assigns, may have against Releasee by reason of any matter,
cause or thing done, omitted or suffered to be done by Releasee to the
extent related to or in any way connected with (a) that certain loan (the
"Loan") made by TIAA to Associates and secured by the property commonly
known as the Mall of Memphis in Memphis, Tennessee (the "Property"), (b)
the documents relating to the Loan, (c) the Property or (d) the
relationship that Releasor may have had with Releasee with respect thereto,
relating to the period of time prior to and including the date hereof,
except for: (i) any claim arising out of TIAA's right to receive refunds,
if any, for real estate taxes paid with respect to the Property for the
1998 tax year; (ii) any claim arising out of TIAA's right to receive all
cash on hand held by Releasee in connection with the Property as of the
date hereof (subject to Releasee's right to pay invoices, bills and other
claims for matters which accrued prior to the date hereof from such cash on
hand pursuant to and in accordance with that certain Cash Holdback
Agreement of even date herewith between Releasee and TIAA); (iii) any
claims made by third parties against Releasor based upon or arising out of
acts or obligations of Releasee prior to the date hereof (except third
party claims based upon or arising out of environmental conditions related
to the Property); and (iv) any claim arising out of or resulting from the
breach of any agreement, covenant or warranty or any misrepresentation of
Releasee under this General Release or, as to the parties thereto, that
certain Agreement for Deed in Lieu of Foreclosure (the "Deed in Lieu
Agreement") by and between Associates and AMM, or any other agreement
executed pursuant to the Deed in Lieu Agreement, including without
limitation that certain "Termination Agreement" (as defined in the Deed in
Lieu Agreement).
Anything contained herein to the contrary notwithstanding, this
General Release shall be deemed to be void ab initio and of no further
force or effect if Releasee shall (a) commence any action, including,
without limitation, a case under the U.S. Bankruptcy Code or any other
debtor-relief law, to prevent or rescind the transfer of the Property, or
any part thereof, to AMM, or (b) become a party to a case under the U.S.
Bankruptcy Code or any other debtor-relief case or proceeding which results
in the prevention or rescission of the transfer of the Property, or any
part thereof, to AMM.
<PAGE>
To the extent that the laws (including, without limitation, statutory
law, common law or otherwise) of Tennessee, New York or any other state
provide that the release described in the first paragraph of this General
Release (the "Release") does not extend to (i) claims which Releasor does
not know of or suspect to exist in its favor at the time of providing the
Release, or (ii) claims which were not contemplated by Releasor at the time
the Release was provided, Releasor hereby waives the protections of any
such laws in connection with the matters that are the subject of the
Release.
TIAA and AMM both hereby confirm and represent that they have
willingly signed this General Release without any coercion or unlawful
action on the part of Releasee or any other party designed to obtain such
signature. This General Release may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of
which shall constitute one and the same agreement.
[This Space Intentionally Left Blank;
Signatures Begin On The Next Page]
<PAGE>
Executed on this 4th day of May, 1999.
TIAA: TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA,
a New York corporation
By: ___________________________
Name: ___________________________
Its: ___________________________
AMM: THE AMERICAN MALL OF MEMPHIS, LLC,
a California limited liability company
By: Memphis AMP, LLC,
a California limited liability company,
its Manager
By: ___________________________
Name: ___________________________
Its: ___________________________
By: ___________________________
Name: ___________________________
Its: ___________________________
<PAGE>
THIS INSTRUMENT PREPARED BY:
Owen P. Gross, Esq.
Kulik, Gottesman & Mouton, LLP
1880 Century Park East, Suite 1150
Los Angeles, California 90067-1611
_________________________________________________________________________
ASSIGNMENT AND ASSUMPTION OF REA RIGHTS AND OBLIGATIONS
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged, MALL OF MEMPHIS ASSOCIATES, an Illinois
general partnership ("Assignor"), does hereby, as of the date set forth
below, assign, transfer and set over to THE AMERICAN MALL OF MEMPHIS, LLC,
a California limited liability company ("Assignee"), without warranty or
recourse, all of Assignor's right, title and interest under that certain
Construction, Operation and Reciprocal Easement Agreement dated as of
October 1, 1981, affecting real property commonly known as the Mall of
Memphis, Memphis Tennessee and more particularly described on EXHIBIT A
attached hereto (as amended, the REA"), and Assignee does hereby, from and
after the date set forth below, accept such assignment and agree to be
bound by and perform all of Assignor's duties, covenants and obligations
under the REA which are to be performed in the first instance on or after
the date set forth below.
1. Assignor represents and warrants to Assignee that the execution
and delivery of this Assignment has been duly authorized by Assignor.
2. Assignee represents and warrants to Assignor that the execution
and delivery of this Assignment has been duly authorized by Assignee.
3. This Assignment is an absolute and outright assignment of
Assignor's right, title, and interest in and to the Property which shall be
effective from and after the date set forth below.
4. This Assignment may be relied upon as conclusive evidence that
the Property has been assigned and set over to Assignee to the extent the
Property is assignable.
5. Assignor hereby represents and warrants to Assignee, to the
actual knowledge of Glenn Emig, with no duty to investigate, that no
previous assignment of Assignor's interest in the Property has been made
other than a collateral assignment to Teachers Insurance and Annuity
Association of America.
6. This Assignment shall be binding upon and inure to the benefit
of the successors and assigns of Assignor and Assignee.
7. This Assignment shall be governed by and construed and
interpreted in accordance with the laws of the State of Tennessee.
8. This Assignment may be executed in any number of counterparts,
each of which shall be deemed an original and all of which shall constitute
one and the same instrument, with the same effect as if all parties had
signed the same signature page.
[This Space Intentionally Left Blank;
Signatures Begin On The Next Page]
<PAGE>
IN WITNESS WHEREOF, this Assignment has been executed by Assignor as
of this 3rd day of May, 1999.
ASSIGNOR: MALL OF MEMPHIS ASSOCIATES,
an Illinois general partnership
By: Carlyle Real Estate Limited
Partnership - XI,
an Illinois limited partnership,
General Partner
By: JMB Realty Corporation,
a Delaware corporation,
General Partner
By: _______________________
Name: _______________________
Its: _______________________
ASSIGNEE: THE AMERICAN MALL OF MEMPHIS, LLC,
a California limited liability company
By: Memphis AMP, LLC,
a California limited liability company,
its Manager
By: ___________________________
Name:___________________________
Its: ___________________________
By: ___________________________
Name:___________________________
Its: ___________________________
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
(See Attached)
EXHIBIT 10.2
- ------------
KULIK, GOTTESMAN & MOUTON, LLP
Attorneys at Law
1880 Century Park East, Suite 1150
Los Angeles, California 90067-1611
May 24, 1999
Real Estate Department Telephone (310) 557-9200
File No. 25770 Facsimile (310) 557-0224
VIA FACSIMILE
- -------------
To the Parties on the attached Distribution List
RE: THE MALL OF MEMPHIS, MEMPHIS, TENNESSEE
---------------------------------------
Ladies and Gentlemen:
This letter shall confirm the parties understanding that the
transactions and/or transfers contemplated by the following documents were
consummated on Friday, May 14, 1999, and that, notwithstanding the dates
indicated or referenced in such documents, such documents were delivered
and deemed effective as of May 14, 1999:
1. All of the documents executed in connection with the loan from
Lehman Brothers Holdings Inc. to The American Mall of Memphis, LLC;
2. All of the documents executed in connection with that certain
agreement for Deed in Lieu of Foreclosure between The American Mall of
Memphis, LLC and Mall of Memphis Associates (including, without limitation,
the Agreement for Deed in Lieu of Foreclosure);
3. All of the documents executed in connection with that certain
Loan Purchase and Sale Agreement dated between American Mall Properties,
LLC and Teachers Insurance and Annuity Association of America (as amended);
4. All of the documents executed in connection with that certain
Termination Agreement between The American Mall of Memphis, LLC, Teachers
Insurance and Annuity Association of America, Mall of Memphis Associates,
Carlyle Real Estate Limited Partnership - XI, Trizec Hahn Centers Inc.
(formerly known as Ernest W. Hahn, Inc.), and Hahn Mortgage Corporation
(including, without limitation, the Termination Agreement).
Please call me immediately if the foregoing does not reflect your
understanding. Otherwise, please execute this letter as provided below and
return a copy to me by facsimile. I will distribute fully-executed
counterparts to all parties for your files.
Very truly yours,
/s/ Owen P. Gross
for KULIK, GOTTESMAN & MOUTON, LLP
<PAGE>
KULIK, GOTTESMAN & MOUTON, LLP
cc: Mr. Tony Quintero (via facsimile)
Ms. Jennifer Hochglaube (via facsimile)
Mr. Glenn Emig (via facsimile)
THE UNDERSIGNED ACKNOWLEDGE AND AGREE WITH THE FOREGOING.
/s/ Owen P. Gross
- --------------------------------------------------
Owen P. Gross, Esq. of
Kulik, Gottesman & Mouton, LLP for
The American Mall of Memphis, LLC and
American Mall Properties, LLC.
- --------------------------------------------------
Robert D. Hancock, Jr., Esq. of
Long, Aldridge & Norman, LLP for
Lehman Brothers Holdings Inc.
Date: May_____, 1999
/s/ Sheldon A. Halpern
- --------------------------------------------------
Sheldon A. Halpern, Esq. of
Pircher, Nichols & Meeks for
Mall of Memphis Associates and
Carlyle Real Estate Limited Partnership - XI
- --------------------------------------------------
Randi B. Margolin, Esq. for
Teachers Insurance and Annuity Association
of America
- --------------------------------------------------
Susan Kanfer, Esq. for
TrizecHahn Centers Inc.
(formerly known as Ernest W. Hahn, Inc.)
and Hahn Mortgage Corporation
<PAGE>
DISTRIBUTION LIST
- -----------------
Robert D. Hancock, Jr., Esq.
Long, Aldridge & Norman, LLP
One Peachtree Center, Suite 5300
303 Peachtree Street
Atlanta, Georgia 30308
(404) 527-4198
Sheldon A. Halpern, Esq.
Pircher, Nichols & Meeks
1999 Avenue of the Stars, Suite 2600
Los Angeles, California 90067
(310) 201-8922
Randi B. Margolin, Esq.
Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, New York 10017
(212) 953-9879
Susan Kanfer, Esq.
TrizecHahn Development
4350 La Jolla Village Drive, Suite 700
San Diego, California 92122-1233
(619) 546-3245
