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): November 13, 1996
JMB MORTGAGE PARTNERS, LTD.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Illinois 2-79095 36-3198533
- ------------------- -------------- --------------------
(State or other) (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Organization
900 N. Michigan Avenue, Chicago, Illinois 60611-1575
-----------------------------------------------------
(Address of principal executive office)
Registrant's telephone number, including area code: (312) 915-1987
-------------------------------------------------------------------
SPRING HILL FASHION CORNER - PHASE I
West Dundee, Illinois
------------------------------------
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS. JMB Mortgage Partners,
Ltd. (the "Partnership") together with its affiliated lenders, JMB
Mortgage Partners, Ltd. - II and JMB Mortgage Partners, Ltd. - III (the
"Affiliated Partners"), had acquired title, pursuant to a deed in lieu
of foreclosure, to the Spring Hill Fashion Corner - Phase I (the
"Property"), an approximately 125,000 net rentable square-foot shopping
center located on approximately twelve acres in West Dundee, Kane
County, Illinois in May 1995 and contributed such property to JMB/Spring
Hill Associates (the "Venture"). In November 1996, the Venture sold the
land and related improvements of the Property pursuant to a purchase
agreement reached in October 1996 between the Venture and Inland Real
Estate Corporation, a Maryland corporation. The purchaser is not
affiliated with the Partnership or its General Partners and the sale
price was determined by arm's-length negotiations.
The sale price of the land and improvements was $9,200,000 and was
paid in cash at closing (net of selling costs and prorations).
Occupancy at the Property was approximately 95% at the date of sale.
The sale resulted in no material gain or loss to the Venture for
financial reporting purposes, due to a $775,000 provision for value
impairment recognized by the Venture as of September 30, 1996 (of which
the Partnership's share was $468,488) in contemplation of this sale.
Also, the Property was classified as held for sale as of July 1, 1996
and therefore has not been subject to continued depreciation as of that
date for financial reporting purposes. In addition, the Venture expects
to report a loss on sale of approximately $900,000 for Federal income
tax reporting purposes in 1996 (of which the Partnership's share will be
approximately $544,000).
The terms of the Venture agreement provide generally that annual
cash flow, sale proceeds and tax items are to be distributed or
allocated based on the capital contributions made by each partner
(60.45% to the Partnership and 39.55% in the aggregate to the Affiliated
Partners). With the sale of the Spring Hill Fashion Corner, which
represented the Partnership's last remaining investment, the Partnership
expects to distribute its share of the net proceeds from this sale as
part of a final liquidating distribution (as described below) in late
1996.
The Partnership Agreement provides that the General Partners are
entitled to receive 3% of all sale and repayment proceeds and a portion
of the remaining 97% of all sale and repayment proceeds. However, upon
completion of the liquidation of the Partnership and final distribution
of all Partnership funds, all previous distributions of sale and
repayment proceeds to the General Partners shall be recontributed to the
Partnership to the extent that the Limited Partners have not received
sale and repayment proceeds equal to their initial capital investment.
As this sale represents the Partnership's last remaining investment and
since the Limited Partners will not receive total sale and repayment
proceeds equal to their initial capital investment, the General Partners
will not share in any distributions of proceeds from this sale.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements. Not Applicable
(b) Pro Forma Financial Information - Narrative.
As a result of the sale of the Property, beyond the date of sale,
there will be no further rental and other income, property operating
expenses, depreciation or venture partners' share of venture's
operations 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, 1995) were approximately
$1,452,000, $553,000, $240,000 and $260,000, respectively. Rental and
other income, property operating expenses, depreciation and venture
partners' share of venture's operations (loss) for the Property were
approximately $888,000, $1,137,000, $125,000 and ($148,000),
respectively, for the nine months ended September 30, 1996. Also, as a
result of the sale of the Property, there are no further consolidated
assets and liabilities related to the Property, which at September 30,
1996 consisted of land and buildings and improvements (net of
accumulated depreciation and provision for value impairment) of
approximately $8,876,000; cash and other current assets of approximately
$765,000; deferred costs of approximately $109,000; accounts payable,
accrued real estate taxes and other current liabilities of approximately
$359,000; tenant security deposits of approximately $57,000 and venture
partners' subordinated equity of approximately $3,691,000. The
remaining affairs of the Partnership are expected to be wound up as soon
as it is feasibly possible, with a final liquidating distribution from
the Partnership (excluding any amounts distributable to the liquidating
trust described below) to the Limited Partners expected to be paid in
late 1996.
In connection with the planned liquidation and termination of the
Partnership, the Corporate General Partner currently intends to cause
the formation of a liquidating trust on or before December 31, 1996, in
which all of the Partnership's remaining assets, subject to liabilities,
will be transferred. The initial trustees of the liquidating trust are
expected to be individuals who are officers of the Corporate General
Partner. Each Holder of Interests in the Partnership would, upon the
establishment of the liquidating trust, be deemed to be the beneficial
owner of a comparable share of the aggregate beneficial interests in the
liquidating trust. It is anticipated that the liquidating trust would
permit the realization of substantial cost savings in administrative and
other expenses until any residual liabilities (including contingent
liabilities) of the Partnership are paid or otherwise determined to be
extinguished and any remaining funds are distributed to the beneficial
owners of the liquidating trust. The liquidating trust is expected to
be in existence for approximately one year, subject to extension under
certain circumstances.
(c) Exhibits.
1. Real Property Purchase Agreement between JMB/Spring Hill
Associates and Inland Real Estate Corporation, dated October 14, 1996,
as amended October 29, 1996.
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.
JMB MORTGAGE PARTNERS, LTD.
BY: JMB Realty Corporation
Corporate General Partner
By: GAILEN J. HULL
Gailen J. Hull
Senior Vice President and
Principal Accounting Officer
DATE: November 22, 1996
EXHIBIT C.1
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I DEFINITIONS 1
1.1 Definitions 1
ARTICLE II PURCHASE AND SALE 3
2.1 Purchase and Sale 3
ARTICLE III PURCHASE PRICE 3
3.1 Purchase Price 3
ARTICLE IV CLOSING MATTERS 4
4.1 Survey 4
4.2 Title 4
4.3 Possession, Prorations and Expenses 5
4.4 Escrow 9
4.5 Closing 9
ARTICLE V BROKERAGE 11
5.1 Brokerage 11
ARTICLE VI DESTRUCTION, DAMAGE OR CONDEMNATION 12
6.1 Destruction or Damage 12
6.2 Condemnation 12
6.3 Casualty and Rent Loss Insurance 13
ARTICLE VIICOVENANTS, REPRESENTATIONS, WARRANTIES 13
7.1 Affirmative Covenants of Seller 13
7.2 Representations and Warranties of Seller 15
7.3 Representations and Warranties
of Purchaser 16
7.4 Covenants of Purchaser 17
ARTICLE VIII DEFAULT, CONDITIONS PRECEDENT
AND TERMINATION 18
8.1 Conditions to Purchaser's Obligations
and Default by Seller 18
8.2 Conditions to Seller's Obligations
and Default by Purchaser 19
ARTICLE IX NOTICES 19
9.1 Notices 19
ARTICLE X ADDITIONAL COVENANTS 21
10.1 Entire Agreement, Amendments and Waivers 21
10.2 Further Assurances 21
10.3 Survival and Benefit 21
10.4 No Third Party Benefits 22
10.5 No Recording 22
10.6 Interpretation 22
10.7 Seller's Exculpation 23
10.8 Effective Date 24
EXHIBITS
--------
A - Legal Description of Real Property
B - Permitted Title Exceptions
C - List of Personal Property
D - List of Leases
E - List of Service Contracts
F - Form of Tenant Estoppel Letter
G - List of Pending Litigation
H - Criterion for New Leases
AGREEMENT TO PURCHASE
---------------------
THIS AGREEMENT is made this 14th day of October, 1996, by and
between JMB/Spring Hill Associates, an Illinois general partnership
("Seller") and Inland Real Estate Corporation, a Maryland corporation
("Purchaser").
R E C I T A L S:
----------------
A. Seller is the fee owner of that certain Shopping Center
("Improvements") commonly known as Spring Hill Fashion Corner - Phase I,
located at the intersection of Route 72 and Route 31, West Dundee,
Illinois, and legally described in Exhibit "A" attached hereto (the
"Real Property").
B. Seller desires to sell and Purchaser desires to purchase,
the "Property" (as hereinafter defined) upon and subject to the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Purchaser agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. When used herein, the following terms shall
have the respective meanings set forth opposite each such term:
AGREEMENT: This Agreement to Purchase including the Exhibits
attached hereto which are by this reference
incorporated herein and made a part hereof.
CLOSING DATE: October 30, 1996 subject to extension to December 2,
1996 pursuant to Section 4.5(b)(viii) hereof, or
pursuant to Section 4.2 hereof.
CLOSING: The consummation of this Agreement.
DEED: That certain recordable Limited Warranty Deed to be
executed by Seller and delivered by Seller to
Purchaser at the Closing, conveying the Real Property
to Purchaser (or to Purchaser's designee) subject only
to the Permitted Title Exceptions.
DEPOSIT: The sum of $150,000.00 which shall be deposited by
Purchaser with Title Insurer within one business day
after Seller's acceptance hereof, at Title Insurer's
office in Chicago, Illinois, to be held in an interest
bearing account as earnest money subject to the terms
of this Agreement. All interest earned thereon shall
be included in this definition.
LEASES: Those leases for rental of retail space in the
Improvements listed on Exhibit D and those leases
executed hereafter and which are in existence as of
the Closing Date.
LEGAL
REQUIREMENTS: All laws, statutes, codes, acts, ordinances,
judgments, decrees, injunctions, rules, regulations,
permits, licenses, authorizations, directions and
requirements of all governments and governmental
authorities having jurisdiction over the Real Property
and the operation of the Improvements thereon.
NOTICE TO
CANCEL: That written notice which may be given by Purchaser to
Seller pursuant to Section 8.1(a).
PERMITTED TITLE
EXCEPTIONS: The Leases, those matters set forth in Exhibit "B"
attached hereto, and any other matters which Purchaser
shall approve in writing or be deemed to have approved
pursuant to the terms of this Agreement.
PERSONAL
PROPERTY: Those items of personalty, which are listed on Exhibit
"C" attached hereto and which will be conveyed to
Purchaser at Closing by a Bill of Sale (the "Bill of
Sale") containing no warranties, whether express or
implied, except a warranty of title free of any lien
or encumbrance.
PROPERTY: The Real Property, Personal Property, Service
Contracts, and the Leases.
PURCHASE PRICE: The consideration payable by Purchaser to Seller for
the Property, as provided in Article III.
PURCHASER: Inland Real Estate Corporation or its designee.
RENT ROLL: The list of Leases in existence as of the date of said
list, which list is attached hereto as Exhibit "D."
SELLER: JMB/Spring Hill Associates
SERVICE
CONTRACTS: Those contracts, agreements, and leases of equipment
relating to the servicing, operation, management and
maintenance of the Property which are listed on
Exhibit "E" attached hereto.
SURVEY: Current as-built survey of the Real Property prepared
by a surveyor licensed by the State of Illinois and
certified to Purchaser, Purchaser's designee, and the
Title Insurer, to be prepared in accordance with
minimum standards for an ALTA survey.
TITLE
COMMITMENT: A commitment for an Owner's Title Insurance Policy for
the Real Property issued by the Title Insurer in the
full amount of the Purchase Price, covering title to
the Real Property, dated on or after the date hereof,
showing Seller as owner of the Real Property in fee
simple, subject only to the Permitted Title Exceptions
and other exceptions pertaining to liens or
encumbrances of a definite or ascertainable amount
(which, in the aggregate do not exceed the Purchase
Price) which may be removed by the payment of money at
Closing and which Seller shall so remove at Closing.
The Title Commitment will have attached thereto the
following endorsements ("Endorsements"): Extended
Coverage, 3.1 Zoning with Parking Contiguity and
Restrictions.
TITLE INSURER: Near North National Title Corporation, as agent for
First American Title Insurance Company.
ARTICLE II
PURCHASE AND SALE
2.1 PURCHASE AND SALE. Subject to the conditions and on the
terms contained in this Agreement, Purchaser agrees to purchase and
acquire from Seller, and Seller agrees to sell and transfer to
Purchaser, the Real Property by the Deed, the Leases and Service
Contracts by assignment, and the Personal Property by the Bill of Sale.
ARTICLE III
PURCHASE PRICE
3.1 PURCHASE PRICE. The purchase price shall be TEN MILLION ONE
HUNDRED TWENTY FIVE THOUSAND AND NO/100 ($10,125,000.00) DOLLARS payable
as hereinafter provided. Purchaser agrees to pay to Seller, and Seller
agrees to accept payment of the Purchase Price as follows:
(a) The Deposit shall be applied against the Purchase
Price at Closing.
(b) Purchaser shall pay to Seller at Closing the balance
of the Purchase Price, plus or minus adjustments and prorations as
hereinafter provided, by certified, cashier's or escrowee check or bank
wire transfer of collected federal funds, as Seller requests.
ARTICLE IV
CLOSING MATTERS
4.1 SURVEY. No later than ten (10) days following the date
hereof, Seller shall deliver the Survey to Purchaser, at Seller's sole
cost and expense. The Survey shall be dated not more than thirty (30)
days prior to date of delivery, shall show no encroachments by or from
the Real Property onto any adjacent property and no violation of or
encroachments upon any recorded building lines, restrictions, zoning
set-backs, or easements affecting the Real Property. If the Survey
discloses any such unpermitted encroachment or violation or any
exceptions to title or matters indicating possible rights of third
parties other than the Permitted Title Exceptions and the same are not
acceptable to Purchaser, or if Purchaser desires to have the surveyor's
certification revised in a reasonable manner, then, within five (5) days
from Purchaser's receipt of the Survey, Purchaser must so notify Seller.
If Purchaser fails to so notify Seller within said five (5) day period,
the Survey will be conclusively deemed to be approved by Purchaser. If,
within said five (5) day period Purchaser notifies Seller that the
Survey does not comply with the terms of this Agreement (which
notification must specify in what respects the Survey does not so
comply), Seller shall have ten (10) days from the date of delivery of
Purchaser's notice to have the Title Insurer issue its endorsements
insuring against damage caused by such encroachments, violations or
unpermitted exceptions and provide evidence thereof to Purchaser, or to
have the surveyor's certification revised, as applicable, and if Seller
fails to do so, and provide evidence thereof to Purchaser, within said
ten (10) day period, Purchaser may elect within ten (10) days after the
expiration of Seller's ten (10) day cure period, to (i) terminate this
Agreement and thereafter there shall be no further liability of either
party hereunder (in which event the Deposit shall promptly be returned
to Purchaser) or (ii) accept the Real Property subject to such
encroachments, violations and unpermitted exceptions or the unrevised
surveyor's certification, as applicable, without any diminution of the
Purchase Price. Purchaser's failure to make any election within said
ten (10) day period shall be conclusively deemed to mean that Purchaser
has elected the option contained in subsection (i) of this Section 4.1.
4.2 TITLE. No later than ten (10) days following the date
hereof, Seller shall deliver the Title Commitment to Purchaser, at
Seller's sole cost and expense. If the Title Commitment discloses
exceptions to title other than the Permitted Title Exceptions
("Unpermitted Title Exceptions") and such Unpermitted Title Exceptions
are not acceptable to Purchaser, then, within five (5) days from
Purchaser's receipt of the Title Commitment, Purchaser must so notify
Seller. If Purchaser fails to so notify Seller within said five (5) day
period, the Unpermitted Title Exceptions will be conclusively deemed to
be approved by Purchaser. If, within said five (5) day period,
Purchaser shall notify Seller that all or certain of the Unpermitted
Title Exceptions are not acceptable to Purchaser (which notification
must specify which Unpermitted Title Exceptions are so unacceptable),
Seller shall have ten (10) days from the date of Purchaser's notice to
have such exceptions removed from the Title Commitment or cause the
Title Insurer to insure Purchaser against same and provide evidence
thereof to Purchaser, and if Seller fails to have such exceptions
removed, or insured over, Purchaser may elect, within ten (10) days
after the expiration of Seller's ten (10) day cure period to
(i) terminate this Agreement without liability on the part of any party
thereafter (in which event the Deposit shall be promptly returned to
Purchaser), or (ii) accept title subject to such Unpermitted Title
Exceptions without any diminution of the Purchase Price. Purchaser's
failure to make any election within said ten (10) day period shall be
conclusively deemed to mean that Purchaser has elected the option
contained in subsection (i) of this Section 4.2. On the Closing Date,
at the expense of Seller as set forth in Section 4.3(c) hereof, Seller
shall cause the Title Insurer to issue an owner's title insurance policy
or prepaid commitment therefor pursuant to and in accordance with the
Title Commitment insuring fee simple title to the Real Property in
Purchaser or its designee as of the Closing Date, subject only to the
Permitted Title Exceptions and such other exceptions as Purchaser may
approve. If Seller is unable to cause the Title Insurer to issue any of
the Endorsements and Purchaser refuses to waive the requirement
therefor, then this Agreement shall become null and void and of no
further force or effect, and the Deposit will be returned to Purchaser.
Additionally, Seller will have no obligation to obtain any of the
Endorsements if the Title Insurer charges other than standard rates for
the coverage or if the Title Insurer requires security or an indemnity
from Seller in order to issue any of the Endorsements.
If Purchaser shall make objection to the Survey (as described in
Section 4.1) or the Title Commitment (as described in this Section 4.2)
and the Closing Date was to occur prior to the time each party was able
to exercise its rights under Section 4.1 or Section 4.2, as applicable,
then the Closing Date will be extended to a date which is three (3)
business days subsequent to the latest date for notice, objection and
remedy permitted by either Section 4.1 or 4.2, as applicable.
4.3 POSSESSION, PRORATIONS AND EXPENSES, AND NEW LEASES.
(a) Sole and exclusive possession of the Property, subject
only to the rights of the tenants under the Leases, shall be delivered
to Purchaser on the Closing Date. Any vacant space will be placed into
Rent Ready Condition which is defined to be that all walls are patched
and freshly painted, each space to be demised has a fully-fixtured and
operable bathroom, and all doors have locks and are operable, the
ceiling is completed with acoustical tile and standard fluorescent
lighting and the floor is in broom-clean condition.
(b) If the balance of the Purchase Price is deposited in
immediately available funds with the Title Insurer by 12:00 noon on the
Closing Date, as required by Section 4.5(d) hereof, all prorations will
be computed as of the end of the day immediately prior to the Closing
Date ("Proration Date"). If Purchaser fails to deposit the balance of
the Purchase Price by 12:00 noon on the Closing Date, as aforesaid, and
if Seller does not terminate this Contract for such default of Purchaser
and the Closing occurs, the Proration Date shall be concurrent with the
Closing Date and all prorations will be calculated as of the end of the
day on the Closing Date.
(c) Fixed Rent, Percentage Rent and tenant common area
maintenance and other expense contributions to be made by tenants shall
be prorated as follows:
(i) Fixed Rent - prepaid Fixed Rent will be prorated
as of the Proration Date. All other Fixed Rent which is delinquent on
the Proration Date will not be prorated. All such arrearages of Fixed
Rent unpaid on the Proration Date will remain the sole and exclusive
property of Seller after Closing, provided, however, if, after Closing,
Seller shall receive any such delinquent Fixed Rent, Seller will remit
to Purchaser that portion of such delinquent Fixed Rent that is
attributable to the period after the Proration Date, if any. Seller
shall retain all right, title, power and authority to enforce payment
thereof after Closing, except that Seller will not have the right to
terminate the Lease of a delinquent tenant after Closing due to such
delinquency. If, after Closing, Purchaser or its designee shall receive
any delinquent Fixed Rents (this provision shall not relate to
percentage rents) Purchaser may first apply such payments to rent
delinquencies which relate to any period after the Proration Date, and
Purchaser agrees, on its behalf and on behalf of its designee, to
immediately remit the balance to Seller.
(ii) Percentage Rent - Percentage Rent which is due
but unpaid at Closing and accrued Percentage Rent not yet payable at
Closing will not be prorated. If, after Closing, however, Purchaser
receives any payment of percentage rent which relates in any part to
sales made prior to the Proration Date, Purchaser shall immediately
remit Seller's share thereof to Seller and may not apply any portion of
such percentage rent to any post Proration Date rent delinquencies
whether delinquent Fixed Rent or tenants' delinquent obligations to pay
their prorata share of taxes or "Expenses" (as hereinafter defined).
(iii)Tenant CAM and Other Expense Contributions. For
purposes hereof, the term "Expenses" shall mean all common area
maintenance costs and other operating expenses of the Property,
excluding real estate taxes and other items expressly covered in other
provisions of this Section 4.3. All payments by the tenant to the
landlord under the Leases for Expenses ("Tenant Expense Contributions")
shall be prorated between Seller and Purchaser as follows:
(aa) Seller and Purchaser shall each be
entitled to receive and retain a percentage of the total Tenant Expense
Contributions paid by the tenants in the calendar year of Closing (the
"Applicable Year") equal to the percentage of the actual Expenses for
the Applicable Year paid by said party. As an example, if the total
Expenses for the year of Closing (i.e., 1996) are $200,000, of which
Seller pays $150,000 and Purchaser pays $50,000, and the total Tenant
Expense Contributions for such year are $160,000, then Seller shall be
entitled to $120,000 (75% of $160,000) of said Tenant Expense
Contributions and Purchaser shall be entitled to $40,000 (25% of
$160,000) thereof.
(bb) At Closing, Seller shall give Purchaser a
credit for a prorated portion of the Tenant Expense Contributions paid
in advance for the month of Closing determined by multiplying the total
such Tenant Expense Contributions paid for such month by a fraction, the
numerator of which is the number of days from and including the date of
Closing to and including the last day of such month and the denominator
of which is the total number of days in such month.
(cc) At the time of final calculation from the
tenants of the Tenant Expense Contributions for the Applicable Year,
whether in the nature of year-end reconciliations or payments in
arrears, Seller and Purchaser shall reprorate said Tenant Expense
Contributions based on the total amount thereof and the total actual
Expenses as contemplated under Paragraph (aa) above. If, as a result of
said reproration, the parties determine that either Seller or Purchaser
received from the tenants (as adjusted for the proration made at Closing
pursuant to Paragraph (bb) above) an amount of Tenant Expense
Contributions in excess of the amount to which such party is entitled
pursuant to Paragraph (aa) above, such party shall pay such excess to
the other party within fifteen (15) days after the reproration is
determined. In connection with the foregoing, Purchaser and Seller
agree to cooperate with each other concerning the calculation of the
reproration, including, without limitation, the delivery by each party
to the other of true and correct information concerning the actual
Expenses paid and the Tenant Expense Contributions collected by said
party, and Purchaser agrees to use its good faith efforts in collecting
Tenant Expense Contributions after Closing, including the prompt
preparation and delivery to the tenants of all required year-end
reconciliation statements. Seller shall deliver to Purchaser at Closing
information concerning the Expenses paid and Tenant Expense
Contributions collected by Seller prior to the Closing to the extent
reasonably available to Seller at that time.
(dd) The foregoing terms of this Section 4.3(c)(iii)
to the contrary notwithstanding, the parties hereto agree that they will
make best efforts to effectuate a final reproration of Tenant Expense
Contributions within twenty (20) days after Closing. If they are unable
to so agree, then the reprorations obligation set forth in subparagraph
(cc) above will be complied with.
In addition, security deposits, general and special real estate
and other ad valorem taxes and assessments and other state or city
taxes, fees, charges and assessments affecting the Property, prepaid
expenses, utility charges and deposits, if any, and all other
customarily proratable items shall be prorated as of the Proration Date
on the basis of the most recent ascertainable amounts of or other
reliable information in respect to each such item of income and expense
and the net credit to Purchaser or Seller shall be paid in cash or as a
credit or debit against the Purchase Price. In no event shall Seller be
charged or responsible for any increase in real estate taxes on the
Property resulting from any improvements made to the Property after the
Proration Date. In the event that any Lease requires the tenant
thereunder to pay any portion of the real estate taxes (upon presentment
of the actual tax bill) the credit in favor of Purchaser for accrued
real estate and other ad valorem taxes ("Purchaser's Tax Credit") will
be reduced by an amount equal to the aggregate of all such tenants'
obligations to pay any portion of Purchaser's Tax Credit under all such
Leases. If any general or special assessment (as contrasted to ad
valorem taxes) is payable in installments, only the current installment
will be prorated and all subsequent installments will be the obligation
of Purchaser. Real estate taxes will be reprorated (and such
reproration will be a final reproration) within thirty (30) days after
Closing, but in any event not later than December 18, 1996 ("Reproration
Date") as follows:
(i) if the assessment for 1996 has been promulgated by the
Assessor for Kane County, Illinois by the Reproration Date, then the
amount of such assessment for 1996, as well as the equalization factor
and tax rate for the 1995 real estate taxes will be used in calculating
such reproration; or
(ii) if the assessment for 1996 is not available by the
Reproration Date, then the real estate taxes will be reprorated based
upon 120% of the real estate tax bill for 1995.
In either of the foregoing instances Seller, at the time of
reproration, will be entitled to a credit equal to the aggregate of all
tenants' obligations to pay any portion of such reprorated amount of
real estate taxes under the provisions of the Leases.
(d) Seller shall pay all title charges required to fulfill
the obligations under Section 4.2, one-half (1/2) of the escrow charges,
all survey charges, and the cost of the State and County Transfer Tax on
the Deed. Purchaser shall pay for one-half (1/2) of the escrow charges,
the charges to record the Deed and the cost of the municipalities'
Transfer Tax on the Deed. The parties shall each be solely responsible
for the fees and disbursements of their respective counsel and other
professional advisers.
(e) (i) Seller, until the earlier of the Closing Date or
termination of this Agreement, shall not enter into any new Leases ("New
Leases") without the prior written consent of the Purchaser, which
consent shall not be unreasonably withheld. Purchaser will not be
deemed to have unreasonably withheld its consent to a proposed New Lease
if the terms thereof do not meet the Criterion for New Leases described
on Exhibit H attached hereto.
(ii) In the event Seller enters into a New Lease
after the date of this Agreement, and such New Lease requires
improvements or the payment of brokerage commissions (collectively the
"New Leasing Costs") at the expense of Seller, as landlord, Purchaser by
approving the execution of the New Lease shall, at Closing, assume the
obligation to pay for all unpaid New Leasing Costs. Any New Leasing
Costs paid by Seller prior to Closing, will be reimbursed to Seller by
Purchaser at Closing.
(iii) Failure of the Purchaser to consent or express
its objections with specificity in writing within three (3) business
days after a written request for such consent to the execution of a New
Lease by Seller, shall be deemed to constitute consent.
(iv) Purchaser at Closing will indemnify and forever
defend and hold Seller, its partners, agents, and employees harmless
from any loss, liability, suit, action, judgment or claim as a result of
Purchaser's non-payment of any New Leasing Costs assumed by Purchaser at
Closing.
4.4 ESCROW. Concurrently herewith, the parties, through their
respective attorneys, shall establish a Strict Joint Order Escrow in the
form customarily used by Title Insurer under which the Deposit will be
held. If Purchaser shall not give the Notice to Cancel, then not later
than seven (7) days prior to the Closing Date, but subject in any event
to Section 4.5(g), the Strict Joint Order Escrow will be terminated, and
a new escrow will be created by the parties through their respective
attorneys with the Title Insurer at Title Insurer's office in Chicago,
Illinois through which the Deposit will be held and invested and the
transaction shall be Closed. The escrow instructions shall be in the
form customarily used by the escrowee with such special provisions added
thereto as may be required to conform to the provisions of this
Agreement. Said escrow shall be auxiliary to this Agreement and this
Agreement shall not be merged into nor in any manner superseded by said
escrow.
4.5 CLOSING.
(a) The Closing of the transaction contemplated hereby
shall commence at 10:00 a.m. (CST) on the Closing Date at the offices of
the Title Insurer in Chicago, Illinois or on such other date, time and
place as the parties may mutually agree.
(b) Not later than the Proration Date, Seller shall
deposit in the escrow the following:
(i) The Deed;
(ii) An assignment of all of Seller's right, title
and interest in and under the Leases and Service Contracts;
(iii)The Bill of Sale;
(iv) Originals of the Leases and Service Contracts;
(v) Letters to tenants under the Leases advising
that the Property has been sold to Purchaser and directing payment of
rental under the Leases in accordance with the directions of Purchaser;
(vi) An ALTA statement in form required by the Title
Insurer;
(vii)An executed FIRPTA Affidavit in customary form;
(viii) Estoppel Letters in the form prescribed in
the Lease or if no form is prescribed in the Lease then substantially in
the form of Exhibit F attached hereto from T. J. Maxx, Pier One, Famous
Footwear, Michael's, Cosmetic Center and from such other tenants under
the Leases which, when added to the gross leasable area in the
Improvements occupied by the foregoing five named tenants, aggregate not
less than 80% of the total occupied gross leasable area in the
Improvements. If Seller is unable to procure such Estoppel Letters by
the Proration Date such failure shall not constitute a default by Seller
hereunder and Purchaser's sole rights hereunder (unless Seller shall
have elected to postpone the Closing Date pursuant to the following
sentence) will be to terminate this Agreement and obtain a return of the
Deposit or to waive this condition and Close this Agreement without
diminution of the Purchase Price or any liability to Seller. Seller may
elect by written notice to Purchaser given not later than two (2) days
prior to the Closing Date, to postpone the Closing Date (and thereby
extend the Proration Date) by up to thirty (30) days, in order to
attempt to obtain the minimum required Estoppel Letters from said
tenants. If by the extended Proration Date Seller is not able to
fulfill this condition, Purchaser shall have the right to select either
of the two foregoing elections.
(ix) Such other documents, instruments,
certifications and confirmations as may be reasonably required to fully
effect and consummate the transaction contemplated hereby.
(c) Not later than the Proration Date, Purchaser shall
deposit in the escrow the following:
(i) An ALTA statement in form required by the Title
Insurer;
(ii) An assumption of the Leases (including the
obligation to return or apply the tenants' security deposits under the
Leases, but only to the extent that Purchaser has received a proration
credit at Closing from Seller for said tenant security deposit or
unapplied portion thereof) and Service Contracts; and
(iii)Such other documents, instruments,
certifications and confirmations as may be reasonably required and to
fully effect and consummate the transaction contemplated hereby.
(d) No later than 12:00 noon (EST) on the Closing Date,
Purchaser shall deposit the balance of the Purchase Price as provided in
Section 3.1(b) with the Title Insurer.
(e) Not later than the Proration Date, Seller and
Purchaser shall jointly deposit in the escrow an agreed proration
statement and certificates complying with the provisions of state,
county and local law applicable to the determination of documentary and
transfer taxes.
(f) All documents or other deliveries required to be made
by Purchaser or Seller on or prior to the Proration Date and all
deposits and transactions required to be consummated concurrently with
Closing, shall be deemed to have been delivered and to have been
consummated simultaneously with all other transactions and all other
deliveries, and no delivery shall be deemed to have been made, and no
transaction shall be deemed to have been consummated, until all
deliveries required by Purchaser, or its designee, and Seller shall have
been made, and all concurrent or other transactions shall have been
consummated.
(g) At the request of either party, the transaction shall
be closed by means of a so-called "New York Style Closing," with the
concurrent delivery of the documents of title, transfer of interests,
delivery of the title policy described in Section 4.2 and the payment of
the Purchase Price. The Seller shall provide and pay for any necessary
undertaking (the "Gap Undertaking") to the Title Insurer and the charges
of the Title Insurer for such New York Style Closing shall be paid
equally by the parties hereto.
(h) In any event, whether the Closing occurs through
escrow or by way of a New York style closing, the parties and their
respective attorneys shall meet with the Title Insurer on or before the
Proration Date (as they shall mutually agree) to make their respective
deposits (except for the balance of the Purchase Price which will be
deposited by Purchaser on the Closing Date, as aforesaid) and approve
the proration statement, all as described in this Section 4.5, to enable
the Closing to occur in a prompt fashion on the Closing Date.
ARTICLE V
BROKERAGE
5.1 BROKERAGE. Seller hereby represents and warrants to
Purchaser that Seller has not dealt with any broker or finder with
respect to the transaction contemplated hereby except for Richard Ellis,
L.L.C. ("Brokers") whose commission shall be paid by Seller at Closing;
and Seller hereby agrees to indemnify Purchaser for any claim for
brokerage commission or finder's fee asserted by Brokers or any other
person, firm or corporation claiming to have been engaged by Seller.
Purchaser hereby represents and warrants to Seller that Purchaser has
not dealt with any broker or finder in respect to the transaction
contemplated hereby except for the Brokers and Purchaser hereby agrees
to indemnify Seller for any claim for brokerage commission or finder's
fee asserted by a person, firm or corporation other than the Brokers
claiming to have been engaged by Purchaser.
ARTICLE VI
DESTRUCTION, DAMAGE OR CONDEMNATION
6.1 DESTRUCTION OR DAMAGE. In the event that prior to the
Closing Date any portion of the Improvements shall be damaged or
destroyed by fire or other casualty, Seller shall immediately give
Purchaser notice of such occurrence. If the amount of damage caused by
such fire or casualty shall exceed $350,000.00 (as determined by an
insurance adjuster selected by Seller) Purchaser may, within fifteen
(15) days after receipt of such notice, elect to (a) terminate this
Agreement, in which event the Deposit shall be returned promptly to
Purchaser, all obligations of the parties hereunder shall cease and this
Agreement shall have no further force and effect, or (b) Close the
transaction contemplated hereby as scheduled (except that if the Closing
Date is less than fifteen (15) days following Purchaser's receipt of
such notice, Closing shall be delayed until after Purchaser makes such
election), and Seller shall assign to Purchaser at Closing all rights
under Seller's insurance policy to collect insurance proceeds for such
destruction or damage and loss of rents, and Purchaser shall receive a
credit against the Purchase Price equal to the amount of any deductible
under such policy. Failure to give such notice within such time shall
be conclusive evidence that Purchaser has elected the option contained
in subsection (b) of this Section 6.1.
In the event that the amount of damage caused by such fire or
casualty is less than $350,000.00 (as determined by an insurance
adjuster selected by Seller), Purchaser may not elect to terminate this
Agreement and shall Close the transaction contemplated hereby as
scheduled, and Seller shall assign to Purchaser at Closing all rights
under Seller's insurance policy to collect insurance proceeds for such
destruction or damage and loss of rents, and Purchaser shall receive a
credit against the Purchase Price equal to the amount of any deductible
under such policy.
6.2 CONDEMNATION. If, subsequent to the date hereof and prior
to the Closing Date, any proceeding, which shall relate to the proposed
taking of any "material" portion of the Real Property or Improvements by
condemnation or eminent domain or any action in the nature of eminent
domain, is instituted or commenced, Purchaser shall have the right and
option to terminate this Agreement by giving Seller written notice to
such effect within fifteen (15) days after actual receipt of written
notification of any such occurrence. Failure to give such notice within
such time shall be conclusive evidence that Purchaser has waived the
option to terminate by reason of the occurrence of which it has received
notice. If any such action is instituted or commenced, and Purchaser
elects or is deemed to elect not to terminate this Agreement, at
Closing, Purchaser shall be assigned all Seller's right to any proceeds
therefrom. Seller agrees to furnish Purchaser written notification with
respect to any such proceedings within forty-eight hours of Seller's
receipt of any such notification or learning of the institution of such
proceedings. Should Purchaser elect to so terminate this Agreement, the
Deposit shall be returned promptly to Purchaser and thereupon the
parties hereto shall be released from any and all further obligations
hereunder. If the Closing Date is less than fifteen (15) days following
the last day on which Purchaser is entitled to elect to terminate this
Agreement, the closing shall be delayed until after Purchaser makes such
election.
The term "material" for purposes of this Section 6.2 shall mean
any taking of any portion of the Improvements or any taking of more than
ten (10%) percent of the land area of the Real Estate.
6.3 CASUALTY AND RENT LOSS INSURANCE. If, under the terms of
Section 6.1, Seller is obligated at Closing, to assign to Purchaser all
rights under Seller's insurance policy to collect insurance proceeds for
the repair of any pre-Closing destruction or damage, Seller shall, at
Closing, make Purchaser a loss payee under such insurance policy in
order to effectuate such assignment obligation of Seller and in addition
shall make Purchaser a loss payee for any Loss of Rents insurance
coverage relating to any rental loss arising from said destruction or
damage, but relating solely to the period commencing on the Proration
Date and thereafter while such coverage may be in effect and the rent is
abated under any of the Leases as a result of such destruction or
damage.
In the event Seller is obligated to make Purchaser a loss payee
for any Loss of Rents insurance coverage pursuant to the preceding
paragraph and Seller's insurance to cover such Loss of Rents for a
period of twelve (12) months from the date of any fire or casualty is
not in effect at the time of Closing, Purchaser, at its election (to be
exercised at or prior to Closing by written notice to Seller) may
terminate this Agreement, obtain a return of its Deposit and thereupon
the parties hereto shall be released from any and all further
obligations hereunder.
ARTICLE VII
COVENANTS, REPRESENTATIONS, WARRANTIES
7.1 AFFIRMATIVE COVENANTS OF SELLER.
(a) Seller, at Seller's sole cost and expense, shall until
the earlier of, the Closing Date or termination of this Agreement, keep
and perform or cause to be performed in all material respects: (i) all
obligations of the lessor under the Leases, and (ii) all obligations of
Seller under the Legal Requirements if Seller's failure to perform any
of such Legal Requirements would adversely affect Seller's ability to
consummate this Agreement.
(b) From the date of Seller's acceptance hereof to the
earlier of, the Closing Date or termination of this Agreement, Seller
shall not do, suffer or permit or agree to do any of the following:
(i) Enter into any transaction in respect to or
affecting the Property out of the ordinary course of business;
(ii) Except for Seller's execution of new Leases, as
provided in Section 4.3(e), sell, encumber, or grant any interest in the
Property in any form or manner whatsoever, or otherwise perform or
permit any act which will diminish or otherwise affect Purchaser's
interest under this Agreement or in the Property, or which will prevent
Seller's full performance of its obligations hereunder.
(c) From the date of Seller's acceptance hereof to the
earlier of the Closing Date or termination of this Agreement, upon
reasonable advance notice from Purchaser (which notice shall be not less
than one business day in advance and shall be two (2) business days in
advance if Purchaser desires to inspect any occupied portions of the
Improvements) Seller shall permit representatives, accountants, agents,
employees, lenders, contractors, appraisers, architects and engineers
designated by Purchaser (collectively "Permittees") access to and entry
upon the Property to examine, inspect, measure and test the Property and
access to the office of Seller to review Seller's books and records
relating to the operation thereof. Seller shall have the right to
require that a representative of Seller may accompany any or all of the
Permittees.
If Purchaser desires to conduct any environmental sampling
or testing at the Property (other than a customary Phase 1 Environmental
Report which involves no intrusive testing or sampling), Purchaser shall
first provide Seller with the proposed study plan therefor ("Plan").
The Plan is subject to the approval of Seller and no environmental
sampling or testing shall be performed until the Plan therefor has been
approved by Seller. Purchaser agrees that Seller may have a
representative present at any inspection, sampling or testing,
including, but not limited to, an environmental engineer or consultant
designated by Seller (in connection with any environmental sampling or
testing conducted by Purchaser in accordance with this Section 7(c). At
Seller's request, any sampling or testing by Purchaser's environmental
consultant shall be conducted in a manner so as to provide "split"
samples or data to Seller's environmental consultant.
Purchaser does hereby indemnify and forever defend and hold
Seller, its partners, agents, and employees harmless from any loss,
liability, suit, action judgment, or claim (including, without
limitation, any mechanics' liens which may be filed against the
Property) which any of the indemnified parties may suffer or sustain as
a result of the exercise by Purchaser of its rights (and that of its
Permittees) to enter upon the Property or the office of Seller pursuant
to this Section 7.1(c). Prior to any such entry, Purchaser (or its
Permittees) will deliver to Seller a certificate of Commercial General
Liability insurance naming Seller and its partners as additional insured
thereunder in coverage amounts of not less than $1,000,000.00 per
occurrence. If the Closing does not occur for any reason, Purchaser
will restore (or cause to be restored), the Property to its former
condition to the extent Purchaser or its Permittees have altered or
damaged the Property in any manner.
(d) Seller shall notify Purchaser promptly if Seller
becomes aware of any transactions or occurrence prior to the Closing
Date which would make any of the representations or warranties of Seller
contained in Section 7.2 hereof not true in any material respect.
(e) Any vacant rentable space in the Real Property will be
placed into Rent Ready Condition which is defined to be that all walls
are patched and freshly painted, each space to be demised has a fully-
fixtured and operable bathroom, and all doors have locks and are
operable, the ceiling is completed with acoustical tile and standard
fluorescent lighting and the floor is in broom-clean condition.
(f) Seller agrees to cooperate with Purchaser's
accountants (at no cost or expense to Seller) relative to the
performance by said accountants of an audit of Seller's books and
records relating to the Property. If Purchaser's auditors shall request
Seller to execute a representation letter addressed to the auditors and
Seller and the auditors cannot agree on the content thereof, Purchaser
may terminate this Agreement at any time prior to the Closing Date by
written notice to Seller whereupon Purchaser shall obtain a return of
the Deposit and Seller shall reimburse Purchaser for the actual costs of
Purchaser's appraisal and environmental study to a maximum amount of
$8,500.00 and this Agreement shall become null and void and of no
further force or effect.
7.2 REPRESENTATIONS AND WARRANTIES OF SELLER. To induce
Purchaser to execute, deliver and perform this Agreement, Seller hereby
represents and warrants to Purchaser on and as of the date hereof and on
and as of the Closing Date (except as set forth in any written
communication from Seller to Purchaser given on or prior to the Closing
Date and setting forth any changes in such representations or
warranties) as follows:
(a) Seller owns fee simple title to the Real Property.
(b) Exhibit D hereto attached contains a list of all
Leases presently in existence and lists all modifications or amendments
to the Leases known to Seller. The interest of Seller in the Leases and
Service Agreements is free and clear of all liens and encumbrances and
has not been assigned to any other person.
(c) Except for Seller and tenants under the Leases, to
Seller's actual knowledge, there are no persons in possession or
occupancy of the Real Property or Improvements or any part hereof, nor
are there any persons who have possessory rights in respect to the Real
Property or Improvements or any part thereof. Except as may be set
forth in the Leases, there are no rights of first refusal to purchase or
options to purchase the Property in favor of any tenant under the
Leases.
(d) Seller has full capacity, right, power and authority
to execute, deliver and perform this Agreement and all documents to be
executed by Seller pursuant hereto, and all required action and
approvals therefor have been duly taken and obtained. This Agreement
and all documents to be executed pursuant hereto by Seller are, and
shall be, binding upon Seller.
(e) To Seller's actual knowledge, there are no causes of
action or other litigation pending in respect to the ownership of the
Property or any part thereof or the ownership, enforcement or validity
of the Leases except matters covered by insurance and except for any
matters listed on Exhibit G hereto attached.
(f) To Seller's actual knowledge, there are no existing
condemnation proceedings of any part of the Real Property, and Seller
has not received written notice from a condemning authority of its
intent to condemn any portion of the Real Property.
(g) To Seller's actual knowledge, Seller has not received
written notice from any Governmental Authority that: the Property is in
violation of any Legal Requirements which have not previously been
corrected; or, any special assessment lien has been, or will be, spread
of record.
(h) To Seller's actual knowledge, the Financial Statements
provided by Seller to Purchaser entitled (i) "Springhill Fashion Corner-
Phase I Historical Operating Results" and covering calendar years 1993,
1994 and 1995, and (ii) "Operating Expenses through July 1996", are each
true, accurate and complete in all material respects.
For purposes of this Agreement, the expression "Seller's actual
knowledge" shall mean the actual knowledge of Neil Davidson, the
property manager of the Property, and Julie Walner, the portfolio
manager (collectively the "Managers") and no knowledge of any employee,
agent, or independent contractor of Seller or Managers shall be imputed
to the Managers, nor shall the Managers be bound to, or obligated to,
make or cause to be made any independent inquiry or investigation
relating to the subject matter of any representation or warranty made to
"Seller's actual knowledge."
7.3 REPRESENTATIONS AND WARRANTIES OF PURCHASER. To induce
Seller to execute, deliver and perform this Agreement, Purchaser hereby
represents and warrants to Seller on and as of the date hereof and on
and as of the Closing Date as follows:
(a) All representations and warranties of Purchaser
appearing in other Sections of this Agreement are true and correct.
(b) Purchaser has full capacity, right, power and
authority to execute and deliver this Agreement. At Closing,
Purchaser's designee, if any, will have full capacity, right, power, and
authority to perform this Agreement and all documents to be executed by
Purchaser pursuant hereto. This Agreement and all documents to be
executed pursuant hereto by Purchaser are and shall be binding upon
Purchaser in accordance with their respective terms.
(c) Purchaser certifies and warrants to Seller that the
purchase of the Property by Purchaser or its designee will not result in
a prohibited transaction under Section 406 of the Employee Retirement
Income Security Act of 1974, Section 4975 of the Internal Revenue Code
of 1986, or any similar state law applicable to governmental plans.
Purchaser shall indemnify and hold Seller harmless from all loss
(including reasonable attorneys' fees and costs) arising out of a breach
of the foregoing certification and warranty. The terms of this Section
7.3(c) shall survive the Closing.
7.4 COVENANTS OF PURCHASER.
(a) Purchaser shall notify Seller promptly if Purchaser
becomes aware of any transactions or occurrence prior to the Closing
Date which would make any of the representations or warranties of Seller
contained in this Agreement untrue in any material respect.
Purchaser's failure to so notify Seller shall constitute a
waiver by Purchaser of any liability of Seller to Purchaser or its
designee arising from the untruth of any such representations or
warranties of Seller known to Purchaser prior to Closing, it being
agreed by the parties hereto that such representations and warranties
known by Purchaser to be untrue at or prior to Closing, shall not
survive Closing.
(b) Purchaser acknowledges and agrees that the sale of the
Property is made on an "AS IS, WHERE-IS WITH ALL FAULTS" basis and,
except as specifically set forth in Section 7.2, without representations
or warranties of any kind or nature, express, implied or otherwise,
including, but not limited to, any representation or warranty made by
the Brokers or any representation or warranty concerning zoning,
financial, environmental, or physical condition of the Property, or any
income, expenses, charges, liens, encumbrances, rights, claims on or
affecting or pertaining to the Property. Purchaser acknowledges that if
it elects to purchase the Property, it will be doing so predicated upon
its own independent investigations, the investigations of its Permittees
and the representations and warranties of the Sellers expressly made
herein or in any other document executed and delivered by Seller to
Purchaser at Closing as described in Section 4.5(b). Purchaser hereby
waives any and all claims which may currently exist or which may arise
in the future, by contract, common law or statute currently in effect,
as amended or subsequently enacted, and which relate to the Property or
environmental conditions on, under, or near the Property and are not the
direct result of a default of this Agreement by Seller, in which latter
event Purchaser's remedies shall be limited for any such default prior
to Closing to the provisions of Section 8.1(b) and for any default
discovered after Closing to the provisions of Section 10.3.
(c) Purchaser acknowledges and agrees that except as
provided in Section 4.3(d), nothing in this Agreement shall be deemed to
preclude or prohibit Seller from operating, managing, leasing (including
terminating any Lease for breach by the tenant) and repairing the
Property in the same manner as the same was operated, managed, leased,
and repaired prior to execution hereof. Seller will not voluntarily
terminate any of the Leases prior to their expiration date without
Purchaser's written approval which will not be unreasonably withheld or
unduly delayed.
(d) Purchaser agrees that it will not attempt to contact
any of the tenants of the Property (whether by telephone,
correspondence, or in person) until such time, if ever, as the
Inspection Period shall have expired and Purchaser has not given Seller
a Notice to Cancel. Thereafter, Purchaser may contact any of the
tenants so long as it shall first notify Seller and give Seller the
opportunity to review any written communication with any of the tenants
or to be present at any personal meeting with the tenants, as
applicable.
ARTICLE VIII
DEFAULT, CONDITIONS PRECEDENT AND TERMINATION
8.1 CONDITIONS TO PURCHASER'S OBLIGATIONS AND DEFAULT BY SELLER.
(a) The obligation of Purchaser to close the transaction
contemplated hereby is, at Purchaser's option, subject to Purchaser's
review and approval of: the Leases, Service Contracts, the
environmental and structural condition of the Property, the Title
Commitment, and such market research, inspection of the Property,
determinations as to the Property's compliance with the Legal
Requirements and review of financial statements relating to the
Property, as Purchaser deems necessary to make its final determination
to acquire the Property. Purchaser shall have until 5:00 p.m. (CST)
October 18, 1996 ("Inspection Period") within which to make such reviews
and approve the same. If, by the conclusion of the Inspection Period,
Purchaser has not given Seller written notice ("Notice to Cancel") that
it intends to cancel this Agreement it will be conclusively presumed
that Purchaser has approved the matters described in this
paragraph 8.1(a) and has determined to acquire the Property. Purchaser
will then have a period of seven (7) days after the expiration of the
Inspection Period within which to obtain the approval by its Board of
Directors of the acquisition of the Property pursuant to the terms
hereof. If on or before the conclusion of the Inspection Period
Purchaser has given the Notice To Cancel, or if it has not given the
Notice to Cancel but notifies Seller within seven (7) days after the
expiration of the Inspection Period that it did not obtain Board of
Directors' approval, the Deposit will be paid to Purchaser and this
Agreement will be terminated and become null and void except for
Purchaser's obligations under paragraph 7.1(c) which will survive such
termination.
If Purchaser shall not have given a Notice to Cancel within the
time aforesaid, the Deposit shall be non-refundable except as set forth
in Sections 8.1(b), 6.1 and 6.2.
(b) The obligation of Purchaser to Close the transaction
contemplated hereby is, at Purchaser's option, further subject to all
material representations and warranties of Seller contained in this
Agreement being true and correct in every material respect at and as of
the Closing Date and all material obligations of Seller to have been
performed on or before the Closing Date having been timely and duly
performed. If the condition precedents to Purchaser's obligation to
Close as described in Sections 4.1, 4.2, and 4.5(b)(viii) have not
occurred on or prior to the times required therein (subject to Seller's
extension rights under Section 4.5(b)(viii)), Purchaser shall have only
the following options to be exercised by written notice to Seller prior
to the Closing Date: (i) to terminate this Agreement, obtain a return of
the Deposit and thereafter this Agreement shall be null and void, or
(ii) to waive such conditions and Close this Agreement on the Closing
Date without diminution of the Purchase Price. If Seller shall be in
default of its obligation under this Agreement (in contrast to Seller's
inability to perform any of the conditions precedent described above and
elsewhere in this Agreement which shall not constitute a default),
Purchaser shall have only the following options as its sole and
exclusive remedy for said default to be exercised by written notice to
Seller on or prior to Closing Date: (aa) to terminate this Agreement and
obtain a return of the Deposit, whereupon this Agreement shall become
null and void and of no further force or effect, except that if the
default of Seller shall be of such a nature as to be willful and wanton
in conduct, then Purchaser also shall be entitled to receive from Seller
the sum of $75,000 as and for full, final and agreed upon liquidated
damages (the parties hereto hereby acknowledge that the amount of such
damages are otherwise incapable of ascertainment) or (bb) to obtain a
return of the Deposit and seek specific performance of this Agreement.
If Purchaser does not file suit for Specific Performance within six (6)
months of Seller's alleged default, it will be conclusively presumed
that Purchaser has elected the option set forth in Section 8.1(b)(aa).
Purchaser's failure to give such written notice on or prior to the time
described above, shall be conclusive evidence that all such conditions
precedent to Purchaser's obligations to Close have been satisfied. If
this Agreement is terminated pursuant to this Section 8.1(b), the
Deposit shall promptly be returned to Purchaser, and all other funds and
documents theretofore delivered hereunder or deposited in escrow by
either party shall be promptly returned to such party. The rights and
remedies granted to the Purchaser in this Section 8.1(b) are the sole
rights and remedies available to the Purchaser in the event of Seller's
default of its obligations under this Agreement and Purchaser hereby
waives any other rights it may have at law (including claims for any
tortious conduct it may allege against Seller) or in equity.
8.2 CONDITIONS TO SELLER'S OBLIGATIONS AND DEFAULT BY PURCHASER.
The obligation of Seller to Close the transaction contemplated hereby
is, at Seller's option, conditioned upon Purchaser's representations and
warranties contained in this Agreement being true and correct in every
material respect at and as of the Closing Date, and upon fulfillment by
Purchaser of all obligations of Purchaser which were to have been
performed on or before the Closing Date having been timely and duly
performed. If any condition precedent to Closing of Seller as set forth
in this Section 8.2 has not been fulfilled and satisfied on or before
the Closing Date, Seller may, by notice to Purchaser, elect at any time
thereafter to terminate this Agreement, and if such termination is due
to Purchaser's fault, Seller shall be entitled to retain the Deposit as
full and complete liquidated damages (and not as a penalty or
forfeiture) in lieu of any and all other legal and equitable rights
which Seller may have hereunder, and all other funds and documents
theretofore delivered hereunder or deposited in escrow by either party
shall be promptly returned to such party. Upon such termination and
retention of the Deposit by Seller, except as set forth in the last
sentence of the first grammatical paragraph of Section 10.3 hereof, this
Agreement shall become null and void and of no further force or effect.
ARTICLE IX
NOTICES
9.1 NOTICES. Any notice, request, demand, instrument or other
document to be given or served hereunder shall be in writing and shall
be delivered personally or sent by registered or certified mail, return
receipt requested, postage prepaid, or by overnight express courier, or
by facsimile transmission and addressed to the parties at their
respective addresses set forth below, and the same shall be effective
upon receipt if delivered personally or two (2) business days after
deposit in the mails, if mailed, or upon receipt if deposited with an
overnight express courier or sent by facsimile transmission. A party
may change its address or facsimile transmission number for receipt of
notices by service of a notice of such change in accordance herewith.
If to Seller:
c/o JMB Realty Corporation
900 North Michigan Avenue
Chicago, Illinois 60611-1575
Attention: Julie Walner
Facsimile Number: (312) 915-2310
with copies to:
Richard Ellis, L.L.C.
Attention: Stanley Warnick
Three First National Plaza
Chicago, Illinois 60602
Facsimile Number: (312) 899-0923
and to:
Robert W. Newman, Esq.
Wildman, Harrold, Allen & Dixon
225 West Wacker Drive
Chicago, Illinois 60606-1229
Facsimile Number: (312) 201-2555
If to Purchaser:
Inland Real Estate Corporation
2901 Butterfield Road
Oak Brook, Illinois 60521
Attention: Robert D. Parks, President
Facsimile Number: (630) 218-4935
with a copy to:
The Inland Group, Inc.
2901 Butterfield Road
Oak Brook, Illinois 60521
Attention: Sam Orticelli, Esq.
Facsimile Number: (630) 218-4900
ARTICLE X
ADDITIONAL COVENANTS
10.1 ENTIRE AGREEMENT, AMENDMENTS AND WAIVERS. This Agreement
contains the entire agreement and understanding of the parties with
respect to the subject matter hereof, and the same may not be amended,
modified or discharged nor may any of its terms be waived except by an
instrument in writing signed by the party to be bound thereby.
10.2 FURTHER ASSURANCES. The parties each agree to do, execute,
acknowledge and deliver all such further acts, instruments and
assurances and to take all such further action before or after the
Closing as shall be necessary or desirable to fully carry out this
Agreement and to fully consummate and effect the transaction
contemplated hereby.
10.3 SURVIVAL AND BENEFIT. Only those agreements, covenants,
indemnifications, and obligations of the parties hereunder set forth in
Sections 4.3(b), 5.1, 7.1(c), 7.1(d), 7.4(b), and the representations
and warranties of Purchaser set forth in Section 7.3 shall survive the
Closing and inure to the benefit of and be binding upon the respective
successors and assigns of the parties. The indemnifications set forth
in Sections 5.1 and 7.1(c) shall survive termination of this Agreement
prior to Closing.
Subject to the provisions of the second paragraph of Section
7.4(a): (i) the representations and warranties of Seller, as contained
in this Agreement shall survive the Closing only as hereinafter set
forth and (ii) any liability of Seller to Purchaser based upon any
inaccuracy of Seller's representations and warranties contained in this
Agreement shall expire without notice from or to any party hereto
(including Purchaser's designee) unless:
(a) Purchaser (or its designee) shall give written notice
to Seller within three (3) months after the Closing Date that any of
such representations and warranties were inaccurate in any material
respect, specifying in detail the nature of any such inaccuracy and
certifying to Seller that Purchaser and its designee and Permittees were
not aware of such inaccuracy at the time of the Closing; and
(b) Purchaser (or its designee) shall commence legal
proceedings against Seller for damages suffered as a result of the
inaccuracy specified in such notice given to Seller (pursuant to (a)
above) within six (6) months after the Closing Date.
Notwithstanding anything herein to the contrary, and subject to
the provisions of Section 10.7 hereof, the maximum amount of liability
of Seller for any agreements, indemnification, obligations,
representations, and warranties which shall survive the Closing shall be
$400,000.00, including any costs of litigation which Purchaser or its
designee may incur to enforce such post-closing obligations or
liabilities of Seller.
10.4 NO THIRD PARTY BENEFITS. This Agreement may not be assigned
by Purchaser. However, not earlier than two (2) days prior to the
Proration Date, Purchaser may nominate in writing a land trust as to
which Purchaser is the sole beneficiary to accept title to the Property.
Such nomination by Purchaser will not absolve or release Purchaser
from liability under this Agreement whether prior to or subsequent to
Closing. This Agreement is for the sole and exclusive benefit of the
parties hereto and the designee of Purchaser and no third party is
intended to or shall have any rights hereunder.
10.5 NO RECORDING. The Purchaser agrees not to record this
Agreement or any short form, memorandum, or notice thereof in any public
or governmental office.
10.6 INTERPRETATION.
(a) The headings and captions herein are inserted for
convenient reference only and the same shall not limit or construe the
paragraphs or Sections to which they apply or otherwise affect the
interpretation hereof.
(b) The terms "hereby," "hereof," "hereto, "herein,"
"hereunder" and any similar terms shall refer to this Agreement, and the
term "hereafter" shall mean after and the term "heretofore" shall mean
before, the date of this Agreement.
(c) Words of the masculine, feminine or neuter gender
shall mean and include the correlative words of other genders and words
importing the singular number shall mean and include the plural number
and vice versa.
(d) Words importing persons shall include firms,
associations, partnerships (including limited partnerships), trusts,
corporations and other legal entities, including public bodies, as well
as natural persons.
(e) The terms "include," "including" and similar terms
shall be construed as if followed by the phrase "without being limited
to."
(f) Whenever under the terms of this Agreement the time
for performance of a covenant or condition or the last day to give
notice falls upon a Saturday, Sunday or holiday (whether in the United
States or Canada), such time for performance shall be extended to the
next business day. Otherwise all references herein to "day" shall mean
calendar days.
(g) This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
(h) In any action to enforce any of the terms of this
Agreement, the prevailing party shall be entitled to recover its
expenses, including reasonable attorneys fees and costs of litigation,
including those in any appellate proceedings.
(i) Time is of the essence of this Agreement.
(j) This Agreement and any document or instrument executed
pursuant hereto may be executed in any number of counterparts each of
which shall be deemed an original, but all of which together shall
constitute the same instrument.
10.7 SELLER'S EXCULPATION. Notwithstanding anything herein to
the contrary, in the event of a default hereunder by Seller prior to or
at Closing, neither Seller nor any direct or indirect partner (whether
general or limited) of Seller, nor any shareholder of any partner, nor
any director, officer, employee, agent, shareholder, trustee or
beneficiary of any of them shall have any liability hereunder or in
connection therewith, and Purchaser's sole and exclusive remedies are as
set forth in Section 8.1(b) hereof. In the event that Purchaser (or its
designee) discovers, after Closing, that Seller has breached any of the
representations and warranties made by Seller in this Agreement, they
shall be limited to resort against the assets of Seller only, under
Section 10.3 hereof and no direct or indirect partner (whether general
or limited) of Seller, nor any shareholder of any partner, nor any
director, officer, employee, agent, shareholder, trustee, or beneficiary
of any of them shall be liable to Purchaser or its designee in
connection with such claimed breach of representation or warranty. For
purposes of the foregoing, neither the negative capital account of any
partner of Seller nor any obligation of any partner of Seller to restore
a negative capital account or to contribute capital to Seller or to any
partner of Seller, shall at any time be deemed to be the property or an
asset of Seller or any partner of Seller (and neither Purchaser nor any
of its successors or assigns shall have any right to collect, enforce or
proceed against or with respect to any such negative account or a
partner's obligation to restore the same or contribute capital to Seller
or a partner of Seller).
10.8 EFFECTIVE DATE. Wherever herein contained the expression
"date hereof" is used it shall be deemed to mean the date that Seller
has accepted this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered by Seller and Purchaser on the respective dates set forth
beneath each of their signatures and is intended to be effective as of
the latest such date.
PURCHASER:
INLAND REAL ESTATE CORPORATION
By:_________________________
Its:____________________
Dated: October _____, 1996.
SELLER:
JMB/SPRING HILL ASSOCIATES, an Illinois
general partnership
By: JMB Mortgage Partners, Ltd.-III,
an Illinois limited partnership,
general partner
By: JMB REALTY CORPORATION,
an Illinois corporation,
corporate general partner
By:_________________________
Its:____________________
Date of Seller's Acceptance:
October _____, 1996.
EXHIBIT A
---------
LEGAL DESCRIPTION OF REAL PROPERTY
EXHIBIT B
---------
PERMITTED TITLE EXCEPTIONS
[TO BE APPROVED BY PURCHASER'S COUNSEL ON OR BEFORE OCTOBER 18, 1996 AT
THE TIME OF THE EXPIRATION OF THE INSPECTION PERIOD]
EXHIBIT C
---------
LIST OF PERSONAL PROPERTY
NONE
EXHIBIT E
---------
LIST OF SERVICE CONTRACTS
1. Browning-Ferris Industries of Illinois, Inc.
Dated May 17, 1995
Commencing June 1, 1995 and ending May 31, 1996
2. Williams Awning Co.
Dated January 15, 1996
3. Mike Cork Plumbing & Engineering
Dated April 1996
4. Tecza Brothers, Inc.
Dated July 26, 1995
5. Climate Service, Inc.
Dated July 30, 1996
EXHIBIT F
---------
TENANT ESTOPPEL LETTER
EXHIBIT G
--------
List of Pending Litigation
NONE
FIRST AMENDMENT TO AGREEMENT TO PURCHASE
----------------------------------------
THIS FIRST AMENDMENT TO AGREEMENT TO PURCHASE ("Amendment") is
made as of this ____ day of October, 1996, by and between JMB/Spring
Hill Associates, an Illinois general partnership ("Seller") and Inland
Real Estate Corporation, a Maryland corporation, ("Purchaser").
RECITALS:
--------
A. Seller and Purchaser have previously executed that
certain Agreement to Purchase dated October 14, 1996
("Agreement");
B. On October 18, 1996, Purchaser gave its "Notice to
Cancel" pursuant to the terms of Paragraph 8.1(a) of the Agreement;
C. In consideration of a reduction in the Purchase Price
by Seller and for other consideration set forth in this Amendment, the
parties do hereby desire to vitiate the Notice to Cancel and to
reinstate the terms of the Agreement in full, except to the extent
modified by this Amendment;
D. All terms defined in the Agreement shall have the same
meanings when used in this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this Amendment and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Purchaser agree as follows:
1. The Notice to Cancel dated October 18, 1996, from
Purchaser to Seller is hereby vitiated, and the Agreement is hereby
reinstated in full except to the extent amended hereby;
2. A new definitional term is hereby added to Article I
of the Agreement and shall real as follows:
"PIER 1 LEASE: That certain Lease to be executed by
Seller, as Landlord, and Pier 1 Imports, Inc. as Tenant, and containing
the Fixed Minimum Rent, Percentage Rent and other financial terms set
forth on Exhibit A attached to this Amendment;"
1. The definition of "Closing Date", as set forth in the
Agreement is hereby deleted and in lieu thereof, the following is hereby
substituted:
"Three (3) business days after execution of the Pier 1
Lease and delivery of a copy thereof to Purchaser, subject to extension
to December 23, 1996, pursuant to Section 4.5(b)(viii) hereof, and
pursuant to Section 4.2 hereof."
1. If the Pier 1 Lease is not executed by December 20,
1996, in substantially the same form as used in the existing Lease
between Seller and Pier 1 Imports, Inc., then this Agreement shall be
and become null and void and of no further force or effect, except as
set forth in paragraph 7.1(c) and the Deposit will forthwith be returned
to Purchaser;
2. The Purchase Price set forth in paragraph 3.1 of the
Agreement is hereby changed to "9,200,000.00";
3. Purchaser acknowledges receipt of the Survey and Title
Commitment and Purchaser's comments thereon are contained in that
certain letter dated October 22, 1996, from Samuel A. Orticelli, counsel
to Purchaser, and addressed to Robert W. Newman, counsel to Seller. The
ten (10) day period of time that Seller shall have to attempt to cure
the matters set forth in the October 22, 1996, letter shall commence
from and after the date that this Amendment is executed;
4. Paragraph 4.3(c)(iii)(dd) shall be modified such that
the parties will make best efforts to effect a final reproration of
Tenant Expense Contributions not later than December 27, 1996, or such
earlier date after Closing as Seller shall direct in writing to
Purchaser, provided that such notice from Seller shall be accompanied by
Seller's reproration calculations, and Purchaser shall have not less
than two (2) business days to review and comment upon same;
5. The "Reproration Date", as defined on page 8 of the
Agreement, shall be redefined as follows:
"Real estate taxes will be reprorated (and such reproration will
be a final reproration) not later than December 27, 1996, or
such earlier date after Closing as Seller shall direct in a written
notice to Purchaser ("Reproration Date") as follows:"
1. Purchaser acknowledges that the Inspection Period has
expired and that Purchaser has approved the matters described in
paragraph 8.1(a) of the Agreement and has determined to acquire the
Property. In addition, Purchaser acknowledges that it has obtained the
approval of its Board of Directors to acquire the Property, and that
condition, as contained in paragraph 8.1(a) is acknowledged by Purchaser
to be satisfied.
2. This Amendment and any document or instrument executed
pursuant hereto may be executed in any number of counterparts, each of
which shall be deemed an original, and all of which together shall
constitute the same instrument.
In all other respects, the Agreement remains unmodified and in
full force and effect.
PURCHASER:
INLAND REAL ESTATE CORPORATION
By: _______________________
Its: _________________
SELLER:
JMB/SPRING HILL ASSOCIATES, an Illinois
general partnership
By: JMB Mortgage Partners, Ltd.-III,
an Illinois limited partnership,
general partner
By: JMB REALTY CORPORATION,
an Illinois corporation,
corporate general partner
By:____________________________
Its: _____________________
