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): June 30, 1995
JMB INCOME PROPERTIES, LTD. - X
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(Exact name of registrant as specified in its charter)
Illinois 0-12140 36-3235999
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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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ANIMAS VALLEY MALL
FARMINGTON, NEW MEXICO
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS. On June 30,
1995, Animas Valley Mall Associates ("Associates"), an Illinois general
partnership, sold the land, building, related improvements and personal
property of the shopping center known as Animas Valley Mall ("Animas")
located in Farmington, New Mexico. In addition, Associates sold
concurrently an unencumbered small land outparcel ("Outparcel") located
at Animas. Associates consists of JMB Income Properties, Ltd. - X (the
"Partnership"), an Illinois limited partnership, and JMB Realty
Corporation, the General Partner of the Partnership. The Purchaser of
Animas and the Outparcel, Price Development Company, a Maryland limited
partnership, is not affiliated with the Partnership or its General
Partners and the sale prices were determined by arm's-length
negotiations. Animas is a enclosed regional shopping mall containing
approximately 460,000 square feet of owned space. Department store
spaces included in the owned space above include Dillards (72,000 square
feet), Sears (66,000 square feet), J.C. Penneys (51,000 square feet) and
Bealls (32,000 square feet). Separately, Best (50,000 square feet) owns
their space at Animas. At the time of sale, Animas was
approximately 91% occupied.
The purchase price of Animas was $27,500,000 (before closing costs
and prorations) which was paid in cash at closing. Associates used a
portion of the proceeds to repay the existing first mortgage note of
$27,000,000 plus a portion of the related accrued interest. The lender
had previously agreed to allow Associates to retain a portion of the net
sale proceeds upon sale. As a result, the lender did not receive all of
the accrued interest owed to them under the mortgage note, but accepted
the $27,174,000 payment in full satisfaction of the mortgage note. The
purchase price of the Outparcel was $300,000 (before closing costs and
prorations) which was paid in cash at closing.
Pursuant to the Associates Venture Agreement, substantially all of
the proceeds will be allocable to the Partnership. The Partnership
Agreement provides that the General Partners shall receive as a
distribution from the sale of real property by the Partnership 3% of the
selling price and any deferrals of their 10% distribution of
disburseable cash from the Partnership's operations, subject to certain
limitations. Any remaining proceeds (net after expenses and retained
working capital) will be distributed 85% to the Limited Partners and 15%
to the General Partners. However, prior to any such distributions, the
Limited Partners shall receive 100% of such net sale proceeds until the
Limited Partners (i) have received cash distributions of net sale or
refinancing proceeds in an amount equal to the Limited Partners'
aggregate initial capital investment in the Partnership, and (ii) have
received cumulative cash distributions from the Partnership's operations
which, when combined with the net sale or refinancing proceeds
previously distributed, equal a 10% annual return on the Limited
Partners' average capital investment for each year (their initial
capital investment as reduced by net sale or refinancing proceeds
previously distributed) commencing with the first fiscal quarter of
1984. The Limited Partners have not yet received cash distributions of
net sale or refinancing proceeds in an amount equal to their initial
capital investment in the Partnership.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a). Financial Statements - Not Applicable.
(b). Pro Forma Financial Information - Narrative.
As a result of the sale of Animas, after June 30, 1995 there
will be no further rental income, mortgage and other interest,
depreciation and property operating expenses recorded in the
consolidated financial statements of the Partnership, attributable to
the Partnership's investment in Animas, which for the most recent fiscal
year (the year ended December 31, 1994) were approximately $5,088,000,
$2,261,000, $1,150,000 and $2,103,000 and for the most recent quarter
(the quarter ended March 31, 1995) were approximately $1,345,000,
$540,000, $287,000 and $607,000, respectively. Also, as a result of the
sale of Animas, there are no further assets and liabilities,
attributable to the Partnership's investment in Animas, which at March
31, 1995 consisted of cash and other current assets of approximately
$385,000, land, buildings and improvements (net of accumulated
depreciation) of approximately $23,876,000, other assets of
approximately $187,000, current liabilities of approximately $29,709,000
and other liabilities of approximately $2,000. Associates expects to
recognize a gain, of which all will be substantially allocated to the
Partnership, for financial reporting and federal income tax reporting
purposes in 1995.
(C). Exhibits
1. Shopping Center Purchase Agreement between
Animas Valley Mall Associates and Price Development Company Limited
Partnership dated June 27, 1995
2. Outparcel Purchase Agreement between Animas
Valley Mall Associates and Price Development Company Limited Partnership
dated June 27, 1995.
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 INCOME PROPERTIES, LTD. - X
BY: JMB Realty Corporation
(Managing General Partner)
By: C. SCOTT NELSON
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C. Scott Nelson, Vice President
Director of Partnership
Financial Reporting
Dated: July 14, 1995
SHOPPING CENTER PURCHASE AGREEMENT
(Animas Valley Mall; Farmington, New Mexico)
THIS AGREEMENT is made and entered into as of the 27th day of June, 1995,
by and between ANIMAS VALLEY MALL ASSOCIATES, an Illinois general
partnership (hereinafter called "Seller"), and PRICE DEVELOPMENT COMPANY,
LIMITED PARTNERSHIP, a Maryland limited partnership (hereinafter called
"Buyer").
R E C I T A L S
A. Seller is the owner of that certain real property located at the
intersection of Largo Street and Highway 50, in the City of Farmington,
County of San Juan, State of New Mexico, consisting primarily of a shopping
center (the "Shopping Center"), sometimes known as "Animas Valley Mall."
B. Buyer desires to purchase such Shopping Center on the terms and
conditions hereinafter documented.
NOW, THEREFORE, in consideration of the mutual undertakings of the
parties hereto, it is hereby agreed as follows:
1. Purchase and Sale. Seller shall sell to Buyer, and Buyer shall purchase
from Seller, the land (the "Land") described in Exhibit "A-1" attached
hereto and made a part hereof, together with all right, title and interest
of Seller in and to all improvements, structures, supplies and fixtures
located upon the Land, all right, title and interest of Seller in and to
those items of personal property described in Exhibit "B" attached hereto
and made a part hereof, all right, title and interest of Seller in and to
the name "Animas Valley Mall" and, all right, title and interest of Seller
in and to all leases, reciprocal easement and operating agreements,
contract rights, agreements, tenant lists, advertising material and
telephone exchange numbers (hereinafter, collectively, the "Property"), all
upon the terms, covenants and conditions hereinafter set forth.
Notwithstanding anything to the contrary contained herein, the Property
does not include certain outparcels described in Exhibit "A-2" attached
hereto and made a part hereof.
2. Purchase Price. The purchase price (the "Purchase Price") for the
Property shall be the sum of $27,500,000.
3. Payment of Purchase Price. The Purchase Price shall be paid to
Seller by Buyer as follows:
A. Escrow Deposits. Concurrently herewith, Buyer shall deliver a
bank or cashier's check or other good funds in the amount of $475,000 to
First American Title Insurance Company, National/Commercial Division, at
its offices at 338 East 400 South, Salt Lake City, Utah 84111 (Attention:
Cindy Lund), which company, in its capacity as escrow holder hereunder, is
called "Escrow Holder". The proceeds of such check or other good funds
shall be deposited and held by Escrow Holder as a deposit against the
Purchase Price in accordance with the terms and provisions of this
Agreement. As used herein, the term "Escrow Deposit" shall mean the
foregoing $475,000 deposit, together with all interest thereon. At all
times in which the Escrow Deposit is being held by the Escrow Holder, the
Escrow Deposit shall be invested by Escrow Holder in the following
investments ("Approved Investments"): (i) United States Treasury
obligations, (ii) United States Treasurybacked repurchase agreements issued
by a major national money center banking institution reasonably acceptable
to Seller, or (iii) such other manner as may be reasonably agreed to by
Seller and Buyer. The Escrow Deposit shall be disposed of by Escrow Holder
only as provided in this Agreement. Seller and Buyer agree to promptly
execute such additional escrow instructions as may be required by Escrow
Holder provided the same are consistent with the terms of this Agreement
and are otherwise reasonably satisfactory to the parties.
B. Closing Payment. An amount equal to the Purchase Price, as
adjusted by the application of the Escrow Deposit and by the prorations and
credits specified herein, shall be paid in cash on the "Closing Date", as
hereinafter defined (the amount to be paid under this subparagraph B being
herein called the "Closing Payment")
4. Conditions Precedent
A. Title Matters.
(1) Title Report. Buyer has received Commitment for Title Insurance
No. B-614-ROT/mw dated March 22, 1995 ("Title Commitment") covering the
Property from First American Title Insurance Company (which company, in its
capacity as title insurer hereunder, is herein called the "Title Company").
In addition, Buyer has received an updated survey of the Property dated
June 12, 1995, prepared by Cheney-Walters-Echols, Inc. ("Survey"). Buyer
hereby approves the exceptions to title shown on the Title Commitment and
the matters disclosed on the Survey, subject to those objections, if any,
specified in Exhibit "C" attached hereto and made a part hereof (such
approved exceptions being herein being herein called the "Permitted
Exceptions"). Approval by Buyer of any additional exceptions to title or
survey matters disclosed after the date hereof shall be a condition
precedent to Buyer's obligation to purchase the Property. Unless Buyer
gives written notice that it approves any such additional exceptions to
title or to so disapprove) to be removed at no cost or expense to Buyer
(Seller having the right but not the obligation to do so), the obligation
of Seller to sell, and Buyer to buy, the Property as herein provided shall
terminate (and Seller and Buyer shall have no further obligations in
connection 16 herewith); provided, however, Seller shall pay the amounts
due to pay off the existing loan described in Schedule B, Section 1 of the
Title Commitment as items 2, 3, 4 and 5 and shall cause any mechanic's liens
to be paid off (or insured over in the Title Commitment, such affirmative
insurance, if any, being at Seller's cost and expense). Buyer shall have
the option to waive the condition precedent set forth in this paragraph
4A(1) by notice to Seller. In the event of such waiver, such condition
shall be deemed satisfied.
(2) Exceptions to Title. Buyer shall be obligated to accept title to
the Property, subject to the following exceptions to title:
(a) Real estate taxes and assessments not yet due and payable (it
being understood that such taxes and assessment shall be subject to
proration as set forth in paragraph 5D(l)(a) hereof;
(b) The printed exceptions which appear in the standard form ALTA
owner's policy of title insurance (with "extended coverage") issued by
Title Company in the State of New Mexico; and
(c) Such exceptions to title as may be approved by Buyer pursuant to
the provisions of subparagraph A(1) above.
Conclusive evidence of the availability of such title shall be the
willingness of Title Company to issue to Buyer on the Closing Date an ALTA
owner's title insurance policy (with "extended coverage") in the standard
form issued in the State of New Mexico ("Owner's Policy"), in the face
amount of the Purchase Price, which policy shall show (i) title to the
Property to be vested of record in Buyer, and (ii) the Permitted Exceptions
to be the only exceptions to title.
B. Completed Due Diligence.
(1) Price Reflective of Reviews. Buyer has completed all of Buyer's
due diligence examinations, reviews and inspections of all matters
pertaining to the purchase of the Property, including all leases,
reciprocal easement and operating agreements, service contracts, survey and
title matters, and all physical, environmental and legal compliance matters
and conditions respecting the Property. Buyer acknowledges that Buyer and
Seller have discussed the results if Buyer's due diligence examinations,
reviews and inspections and that the Purchase Price has been adjusted to
appropriately take such due diligence matters into account to Buyer's
satisfaction.
(2) Conduct of Reviews. Buyer hereby represents and warrants to Seller
that Buyer at all times conducted its due diligence review, inspections and
examinations in a manner so as to not cause damage, loss, cost or expense
to Seller or the Property and so as to not interfere with or disturb any
tenant at the Property, and Buyer will indemnify, defend, and hold Seller
and the Property harmless from and against any such damage, loss, cost or
expense (the foregoing obligation surviving any termination of this
Agreement). If the transactions hereunder shall fail to close, Buyer shall
promptly deliver to Seller (without representation or warranty) true,
accurate and complete copies of any written reports relating to the
Property prepared for or on behalf of Buyer by any third party and shall
return all documents and other materials furnished by Seller hereunder.
Buyer shall keep all information or data received or discovered in
connection with any of the inspections, reviews or examinations strictly
confidential.
(2) Conduct of Reviews. Buyer hereby represents and warrants to
Seller that Buyer at all times conducted its due diligence review,
inspections and examinations in a manner so as to not cause damage, loss,
cost or expense
C. Estoppel Certificates. Receipt of estoppel certificates dated not
more than 30 days prior to the Closing Date from (i) Dillards, Sears, J.C.
Penneys, Bealls and Bests (each, an "Anchor Store", and collectively, the
"Anchor Stores"), and (ii) from a sufficient number of the balance of the
tenants in the mall shop premises at the Property so that estoppel
certificates from such tenants shall be received with respect to not less
than 75% of the gross leasable area, in the aggregate, covered by leases
respecting the mall shop premises at the Property in effect as of the date
hereof, is a condition precedent to Buyer's obligation to purchase the
Property hereunder. Estoppel certificates from each party to the "Operating
Agreement" (as defined in Exhibit "D" attached hereto and made a part
hereof) shall be substantially in the form set forth in Exhibit "E"
attached hereto and made a part hereof. Estoppel certificates from the
tenants shall be substantially in the form of Exhibit "F-1" attached hereto
and made a part hereof. Notwithstanding the foregoing, (i) with respect to
the Anchor Stores and any major national tenant, the applicable estoppel
certificate may be in the standard form otherwise required by such entity,
(ii) if the Operating Agreement or tenant lease prescribes the required
form of estoppel certificate, then such required form shall be deemed
acceptable, and (iii) those provisions of the applicable estoppel
certificates respecting defaults, defenses, disputes, claims, offsets,
abatements, concessions and recaptures against rent or other charges and
the like may be limited to the knowledge of the applicable tenant or Anchor
Store. In addition, receipt of an estoppel certificate from First National
Bank of Farmington substantially in the form of Exhibit "F-2" attached
hereto and made apart hereof shall be a condition precedent to Buyer's
obligation to purchase the Property hereunder. Seller's sole obligation
hereunder shall be to utilize reasonable efforts to obtain such estoppel
certificates (such reasonable efforts obligation not including any
obligation to institute legal proceedings or to expend any monies
therefore, other than foe minor administrative charges, whether imposed by
tenants or incurred by Seller). Buyer shall have the option to waive the
condition precedent set forth herein by notice to seller (whereupon such
condition will be deemed satisfied). In the event that prior to the
closing date such condition is not satisfied (or waived as aforesaid), the
obligations of Seller to sell, and Buyer to purchase, the Property
hereunder shall terminate.
D. Performance by Seller; No Material Adverse Change. The performance
and observance, in all material respects, by Seller of all covenants and
agreements of this Agreement to be performed or observed by Seller prior to
or on the Closing Date shall be a condition precedent to Buyer's obligation
to purchase the Property. In addition, in the event that the "Seller
Closing Certificate" (as hereinafter defined) shall disclose any changes in
any material respect in the representations and warranties of Seller
contained in paragraph 7A below which are not otherwise permitted or
contemplated by the terms of this Agreement, then Buyer shall have the
right to terminate this Agreement. Buyer shall have the option to waive the
condition precedent set forth in this paragraph 4D by written notice to
Seller. In the event of such waiver, such condition shall be deemed
satisfied.
E. Performance by Buyer; No Material Adverse Change. The performance
and observance, in all material respects, by Buyer of all covenants and
agreements of this Agreement to be performed or observed by it prior to or
on the Closing Date shall be a condition precedent to Seller's obligation
to sell the Property. In addition, in the event that the "Buyer Closing
Certificate" (as hereinafter defined) shall disclose any changes in any
material respect in the representations and warranties of Buyer contained
in paragraph 7B below which are not permitted or contemplated by the terms
of this Agreement, then Seller shall have the right to terminate this
Agreement. Seller shall have the option to waive the condition precedent
set forth in this paragraph 4E by written notice to Buyer. In the event of
such waiver, such condition shall be deemed satisfied.
5. Closing Procedure. The sale and purchase herein provided shall be
consummated at a closing conference ("Closing Conference"), which shall be
held at Buyer's offices at 35 Century Park-Way, Salt Lake City, Utah. In
order to facilitate the closing of the transactions hereunder, the parties
will meet at a preclosing conference commencing on June 27, 1995, with the
intention to exceed 30 days in the aggregate in order to attempt to cause
such conditions to be satisfied in accordance with, and subject to the
limitations of, this Agreement.
A. Escrow. On or before the Closing Date, the parties shall deliver
to Title Company the following: (1) by Seller, duly executed and
acknowledged originals of a special warranty deed ("Deed") in the form of
Exhibit "G" attached hereto and made a part hereof, and an assignment and
assumption of the Operating Agreement ("Operating Assignment") in the form
of Exhibit "H" attached hereto and made a part hereof, and (2) by Buyer, a
duly executed and acknowledged original of the Operating Assignment and the
Closing Payment in immediately available federal funds. Such deliveries
shall be made pursuant to escrow instructions ("Escrow Instructions") to be
executed among Buyer, Seller and Title Company in form reasonably
acceptable to such parties in order to effectuate the intent hereof. The
conditions to the closing of such escrow shall include the Title Company's
receipt of the Deed, the Operating Assignment, the Closing Payment and a
notice from each of Buyer and Seller authorizing Title Company to close the
transactions as contemplated herein (each of Buyer and Seller being
obligated to deliver such authorization notice at the Closing Conference as
soon as it is reasonably satisfied that the other party is in a position to
deliver the items to be delivered by such other party under subparagraph B
below).
B. Delivery to Parties. Upon the satisfaction of the conditions set
forth in the Escrow Instructions, then (x) the Deed and the Operating
Assignment shall be delivered to Buyer by Title Company's depositing the
same for recordation, (y) the Closing Payment (and the Deposit) shall be
delivered by Title Company to Seller and (z) at the Closing Conference, the
following items shall be delivered:
(1) Seller Deliveries. Seller shall deliver to Buyer the following:
(a) A duly executed and acknowledged bill of sale, assignment and
assumption agreement ("Assignment and Assumption Agreement") with respect
to the personal property, leases and contracts to be assigned hereunder in
the form of Exhibit "I" attached hereto and made a part hereof;
(b) Duly executed and acknowledged certificates regarding the
"non-foreign" status of Seller;
(c) A certificate of Seller ("Seller Closing Certificate") updating
the representations and warranties contained in paragraph 7A hereof to the
Closing Date (and including an updated certified rent roll) and noting any
changes thereto;
(d) Notices ("Tenant Notices") to the tenants under the tenant leases
in form reasonably satisfactory to Seller and Buyer that Buyer is the new
owner of the Property and has been assigned the security deposits, if any;
(e) Evidence reasonably satisfactory to Buyer and Title Company
respecting the due organization of Seller and the due authorization and
execution of this Agreement and the documents required to be delivered
hereunder; and
(f) Such additional documents as may be reasonably required by Buyer
and Title Company in order to consummate the transactions hereunder
(provided the same do not materially increase the costs to, or liability or
obligations of, Seller in a manner not otherwise provided for herein).
(2) Buyer Deliveries. Buyer shall deliver to Seller the
following:
(a) A duly executed and acknowledged Assignment and Assumption
Agreement;
(b) A certificate of Buyer ("Buyer Closing Certificate") paragraph
7B hereof to the Closing Date and noting any changes thereto;
(c) The Tenant Notices;
(d) Evidence reasonably satisfactory to Seller and Title Company
respecting the due organization of Buyer and the due authorization and
execution of this Agreement and the documents required to be delivered
hereunder; and
(e) Such additional documents as may be reasonably required by Seller
and Title Company in or to consummate the transactions hereunder (provided
the same do not materially increase the costs to, or liability or
obligations of, Buyer in a manner not otherwise provided for herein).
C. Closing Costs. Buyer shall pay all closing costs in connection
with the transactions hereunder, including, without limitation, all title
insurance premiums and costs, all survey costs, including the costs to
obtain the Survey, all escrow fees of Escrow Holder, all recording,
documentary, transfer, intangible, sales and use taxes, if any, payable in
connection with the transfers contemplated in this Agreement, and all fees,
costs or expenses in connection with Buyer's due diligence reviews
hereunder. Buyer shall pay its own legal fees, as well as the legal fees of
Seller, in connection with the transactions contemplated herein; provided,
however, (i) Buyer shall not be obligated to pay for any of Seller's legal
fees in connection with Seller having obtained the consent of the partners
of Seller to the transactions hereunder (including any legal fees in
negotiating any tax-free exchanges which may be contemplated in connection
therewith) or in connection with any litigation between Seller and Buyer
which may arise in connection with this Agreement. Seller and Buyer shall
pay their respective shares of prorations as hereinafter provided.
D. Prorations.
(1) Items to be Prorated. The following shall be prorated between
Seller and Buyer as of the Closing Date:
(a) Taxes. All real estate taxes and assessments on the Property for
the current year. In no event shall Seller be charged with or be
responsible for any increase in the taxes on the Property resulting from
the sale of the Property or from any improvements made or leases entered
into on or after the Closing Date.
(b) Rentals.
(i) Fixed Rent. All fixed, minimum or base rentals (other than
"Percentage Rent" and "Expense Reimbursements", as hereafter defined) and
other tenant charges. Fixed rents which are delinquent as of the Closing
Date shall not be prorated hereunder but Buyer shall include such
delinquencies in its normal billing and shall in good faith pursue the
collection thereof after the Closing Date. To the extent Buyer receives
rents (other than Percentage Rents and Expense Reimbursements), such
payments shall be applied first toward then current rent owed to Buyer in
connection with the applicable tenant lease for which such payments are
received, and any excess monies received shall be applied toward the
payment of delinquent rents and delivered to Seller. Buyer may not waive
any delinquent rents nor modify a tenant lease so as to reduce or otherwise
affect amounts owed under such tenant lease for any period in which Seller
is entitled to receive a share of charges or amounts, without first
obtaining Seller's written consent. Seller shall have and hereby reserves
the right to sue any tenant owing delinquent rents to Seller; provided,
however, Seller shall not undertake any action against any delinquent
tenant until one hundred twenty (120) days after the closing hereunder (and
all such actions, if any, shall be commenced not later than one year after
such closing) and then only upon written notice to Buyer. If requested by
Buyer and upon payment by Buyer to Seller of the amounts owed to Seller by
any tenant, Seller shall not pursue any lawsuit but shall instead assign
its claims to Buyer. In no event shall Buyer be required to litigate,
declare a default or otherwise pursue any remedies under any tenant lease
with respect to any such delinquencies. With respect to delinquent rents of
any kind owed by tenants who are no longer tenants of the property as of
the Closing Date, Seller shall retain all rights relating thereto.
(ii) Percentage Rent and Expense Reimbursements. Any percentage rent
payable under the tenant leases ("Percentage Rent") and any common area
charges, taxes, operating expense and other expense reimbursement
obligations of the tenants under the tenant leases ("Expense
Reimbursements") shall be prorated as set forth in this paragraph: All such
amounts received by Seller or billed by Seller on or before the Closing
Date and received thereafter shall be retained by Seller until the year-end
adjustments provided hereafter; all such amounts received by Buyer after
the Closing Date shall be retained by Buyer until such year-end adjustments
(it being understood that the "retention" of such amounts by a party shall
not require an escrow or other segregation thereof by such party). At the
end of the appropriate year-end period (i.e., end of calendar year 1995 or
the end of each lease year, as provided under each tenant lease, the
applicable period being herein called the "Applicable Period"), the
aggregate amount of Percentage Rent and Expense Reimbursements as aforesaid
for such lease year shall be calculated and Seller shall be entitled to its
"allocable share" of each such amount. As used herein, Seller's "allocable
share" with respect to a tenant lease means a fraction, the numerator of
which is the number of days in the Applicable Period in which such lease is
in effect prior to the Closing Date and the denominator of which is the
aggregate number of days in which such lease is in effect during the entire
Applicable Period. To the extent that either party has retained amounts in
excess of the amount to which it is entitled hereunder, such party shall
remit such excess amount to the other party within 15 days of such
determination. After the closing of the transaction, Buyer shall promptly
and accurately bill all tenants for such Percentage Rent and Expense
Reimbursements in accordance with the terms of the applicable tenant leases
and shall diligently pursue collection thereof. Buyer shall make such
calculations promptly following the end of each such lease year and shall
deliver to Seller such information as Seller shall reasonably request in
connection therewith. Seller shall have and hereby reserves the right to
sue any delinquent tenant owing sums hereunder to Seller; provided,
however, Seller shall not undertake any action against any tenant until one
hundred twenty (120) days after the closing hereunder (and all such
actions, if any, shall be commenced not later than one year after such
closing) and then only upon written notice to Buyer. If requested by Buyer
and upon payment by Buyer to Seller of the amounts owed to Seller by any
tenant, Seller shall not pursue any lawsuit but shall instead assign its
claims to Buyer. In no event shall Buyer be required to litigate, declare a
default or otherwise or otherwise pursue any remedies under any tenant
lease with respect to any such delinquencies.
(c) Security Deposits. Seller shall deliver or provide a
credit in an amount equal to all prepaid rentals for periods after the
Closing Date and all refundable security deposits (to the extent the
foregoing are held by Seller and are not applied or forfeited prior to the
Closing Date) to the Buyer on the Closing Date.
(d) Operating Expenses. All operating expenses (such as
expenses under the Service Agreements and the Operating Agreement, utility
bills, and other such normal operating expenses customarily prorated
between sellers and buyers in purchase and sale transactions involving
shopping centers).
(2) Calculation. The prorations and payments shall be made on
the basis of a written statement submitted to Buyer and Seller by Escrow
Holder prior to the Close of Escrow and approved by Buyer and Seller. In
the event any prorations or apportionments made under this subparagraph D
shall prove to be incorrect for any reason, then any party shall be
entitled to an adjustment to correct the same. Any item which cannot be
finally prorated because of the unavailability of information shall be
tentatively prorated on the basis of the best data then available and
reprorated when the information is available.
(3) Reimbursement of Tenant Improvement and Leasing Costs.
Buyer agrees that it will pay or reimburse Seller or the tenant, as
applicable, for all tenant improvement and leasing commission obligations
of the landlord under any leases entered into after the date hereof in
accordance with paragraph 7D(3) below, and the leases listed on Exhibit "N"
attached hereto and made a part hereof ("Pending Leases") (with any amounts
due to Seller being credited on the Closing Date) and that it will acquire
the Property subject to any other provisions of such Pending Leases
(including any free rent provisions contained therein). Seller represents
and warrants to Buyer that all such amounts currently required to be
reimbursed to Seller by Buyer at closing are as set forth in Exhibit "N".
(4) Delivery of Tenant Notices. Promptly upon closing of the
transactions hereunder, Buyer shall cause the Tenant Notices to be
delivered to each of the tenants in accordance with the provisions of the
applicable tenant leases (and shall give Seller reasonable evidence
regarding such delivery).
6. Condemnation or Destruction of Property. In the event that, after
the date hereof but prior to the Closing Date, either any portion of the
Property is taken pursuant to eminent domain proceedings or any of the
improvements on the Property are damaged or destroyed by any casualty,
Seller shall have no obligation to repair or replace any such damage or
destruction. In the event of any casualty damage, Seller shall, prior to
closing, provide an estimate of the cost to repair the same from a
reputable third with pursuing any such amounts or claims). In the event the
condemnation award or the cost of repair of damage to the Property on
account of a casualty, as applicable, shall exceed $1,000,000, either
Seller or Buyer may, at its option, terminate this Agreement by notice to
the other party, given on or before the Closing Date.
7. Representations Warranties and Covenants.
A. Representations. Warranties and Covenants of Seller.
(1) General Disclaimer. Except as specifically set forth in paragraph
7A(2) below, the sale of the Property hereunder is and will be made on an
"as is" basis, without representations and warranties of any kind or
nature, express, implied or otherwise, including, but not limited to, any
representation or warranty concerning title to the Property, the physical
condition of the Property (including, but not limited to, the condition of
the soil or the Improvements), the environmental condition of the Property
(including, but not limited to, the presence or absence of hazardous
substances on or respecting the Property), the compliance of the Property
with applicable laws and regulations (including, but not limited to, zoning
and building codes or the status of development or use rights respecting
the Property), the financial condition of the Property or any other
representation or warranty respecting any income, expenses, charges, liens
or encumbrances, rights or claims on, affecting or pertaining to the
Property or any part thereof. Buyer acknowledges that, during the Due
Diligence Period, Buyer has examined, reviewed and inspected all matters
which in Buyer's judgment bear upon the Property and its value and
suitability for Buyer's purposes. Except as to matters specifically set
forth in paragraph 7A(2) below, Buyer will acquire the Property solely on
the basis of its own physical and financial examinations, reviews and
inspections and the title insurance protection afforded by the Owner's
Policy.
(2) Limited Representations and Warranties of Seller.
Subject to the provisions of paragraph 7A(1) above, Seller hereby
represents and warrants that, except as set forth in Exhibit "J" attached
hereto and made a part hereof:
(a) Rent Roll. Attached as Exhibit "K-1" and made a part hereof is a
true, complete and accurate list, as of the date thereof, of all tenant
leases respecting the Property, and Seller has not received any written
notice of a material default under any of such tenant leases that remains
uncured. The information contained in Exhibit "K-2" attached hereto,
together with the information regarding sales reported by tenants which has
been separately delivered or made available to Buyer by Seller, represents
a good faith compilation of the information contained therein prepared in
the usual course of business respecting the tenant leases but is attached
for informational purposes only (Seller giving no representation o warranty
with respect thereto).Notwithstanding anything to the contrary contained
herein, Seller shall have no obligation or liability to Buyer with respect
to any of the foregoing matters which shall be confirmed as correct in any
estoppel certificate which may be delivered by any of the tenants under the
tenant leases. The information regarding sales reported by tenants for 1994
which is being separately delivered to Buyer by Seller at the Closing
Conference, represents a good faith compilation of the information
contained therein prepared in the usual course of business respecting the
tenant leases but is attached for informational purposes only (Seller
giving no representation or warranty with respect thereto).
(b) Litiqation: Bankruptcy. There is no pending nor, to Seller's
knowledge, any written notice to Seller threatening action, litigation,
condemnation or other proceeding against the Property or against Seller
with respect to the Property nor are there any pending bankruptcy or
insolvency proceedings or claims against Seller.
(c) Compliance. Seller has received no written notice from any
governmental authority having jurisdiction over the Property to the effect
that the Property is not in compliance with applicable laws and ordinances.
(d) Service Agreements. Other than those which are cancelable on 30
days' notice, Seller has not entered into any service agreements or
contracts ("Service Agreements") or other agreements (other than as set
forth in this Agreement) relating to the Property which will be in force on
the Closing Date, except as described in Exhibit "L" attached hereto, and
Seller has not received any written notice of any material default
thereunder that remains uncured.
(e) Operating Agreement. Seller has not received any written notice
of a material default under the Operating Agreement that remains uncured.
Notwithstanding anything to the contrary contained herein, Seller shall
have no obligation or liability to Buyer with respect to any of the
foregoing matters which shall be confirmed as correct in any estoppel
certificate which may be delivered by any of the Anchor Stores.
(f) Environmental Matters. Except as set forth in the
"Environmental Reports" (as defined in Exhibit "m"), to seller's knowledge
there has been no deposit, storage, removal, burial or discharge of any
"Hazardous Material" at, upon, under or within the Property, in an amount
which would, as of the date hereof, give rise to an "Environmental
Compliance Cost". The term "Hazardous Material" shall mean (i) asbestos
and any chemicals, flammable substances or explosives, any radioactive
materials (including radon), any hazardous wastes or substances which
have, as of the date hereof, been determined by any applicable Federal,
State or local government law to be hazardous or toxic by the U.S.
Environmental Protection Agency, the U.S. Department of Transportation,
and/or any instrumentality now or hereafter authorized to regulate
materials and substances in the environment which has jurisdiction over the
Property ("Environmental Agencies"), and (ii) any oil, petroleum or
petroleum derived substance, any drilling fluids, produced waters and other
wastes associated with the exploration, development or production of crude
oil, which materials listed under items (i) and (ii) above cause the
Property (or any part thereof) to be in material violation of any
applicable environmental laws or the regulations of any Environmental
Agency; provided, however, that the term "Hazardous Material" shall not
include motor oil and gasoline contained in or discharged from vehicles not
used primarily for the transport of motor oil or gasoline. The term
"Environmental Compliance Cost" means any reasonable out-of-pocket cost,
fee or expense incurred directly to satisfy any requirement imposed by an
Environmental Agency to bring the Property into compliance with applicable
Federal, State and local laws and regulations directly relating to the
existence on the Property of any Hazardous Material.
(g) No Latent Defects. To Seller's knowledge, there are no "latent
defects" to the improvements comprising the Project. As used herein,
"latent defects" means material defects to the structural integrity of the
improvements comprising the Project which could not be discovered by a
prudent buyer diligently inspecting such improvements (such inspections
including structural and engineering inspections by appropriate
professionals) and that, though not so discoverable, were known to Seller.
(h) Due Authority. This Agreement and all agreements, instruments and
documents herein provided to be executed or to be caused to be executed by
Seller are and on the Closing Date will be duly authorized, executed and
delivered by and are binding upon Seller. Seller is a limited partnership,
duly organized and validly existing under the laws of the State of
Illinois, and is duly authorized and qualified to do all things required of
it under this Agreement. Seller has the capacity and authority to enter
into this Agreement and consummate the transactions herein provided.
(i) Seller's Knowledge. The term "to Seller's knowledge" or other
similar term, as used herein, means the knowledge of James M. Whittington,
Douglas Welker and Margaret Lannen (such knowledge being deemed to be only
the actual knowledge of such individuals without any duty to investigate).
(j) Financial Statements. Seller has provided to Purchaser copies
of unaudited summaries of cash receipts and disbursements for the Property
as at December 31 in the years 1992 through 1994, inclusive, and a
year-to-date summary of cash receipts and disbursement statements for the
period ended April 30, 1995 (with updated year-to-date summaries to be
delivered in connection with the closing hereunder). Seller has provided
such financial information for informational purposes only, without
representation or warranty (other than that the same were prepared in good
faith in the usual course of Seller's business).
B. Representations and Warranties of Buyer. Buyer hereby represents
and warrants that:
(1) This Agreement and all agreements, instruments and documents
herein provided to be executed or to be caused to be executed by Buyer are
and on the Closing Date will be duly authorized, executed and delivered by
and are binding upon Buyer.
(2) Buyer is a limited partnership, duly organized and validly
existing under the laws of the State of Maryland, and is duly authorized
and qualified to do all things required of it under this Agreement.
(3) Buyer has the capacity and authority to enter into this Agreement
and consummate the transactions herein provided.
C. Survival. Any cause of action of a party for a breach of the
foregoing representations and warranties shall survive for a period of one
year after the Closing Date, at which time such representations and
warranties (and any cause of action resulting from a breach thereof not
then in litigation) shall terminate. Notwithstanding the foregoing, if
Buyer shall have actual knowledge as of the Closing Date that any of the
representations or warranties of Seller contained herein are false or
inaccurate or that Seller is in breach or default of any of its obligations
under this Agreement, and Buyer nonetheless closes the transactions
hereunder and acquires the Property, then Seller shall have no liability or
obligation respecting such false or inaccurate representations or
warranties or other breach or default (and any cause of action resulting
therefrom shall terminate upon such closing hereunder).
D. Interim Covenants of Seller. Until the Closing Date or the sooner
termination of this Agreement:
(1) Seller shall maintain the Property in the same manner as prior
hereto pursuant to its normal course of business (such maintenance
obligations not including extraordinary capital expenditures or
expenditures not incurred in such normal course of business), subject to
reasonable wear and tear and further subject to destruction by casualty or
other events beyond the control of Seller.
(2) Seller shall not enter into any additional service contracts or
other similar agreements without the prior consent of Buyer, except those
deemed reasonably necessary by Seller which are cancelable on 30 days'
notice.
(3) Seller shall continue to offer the Property for lease in the
same manner as prior hereto pursuant to its normal course of business and,
upon request, shall keep Buyer reasonably informed as to the status of
leasing prior to the Closing Date. From and after the date hereof, Seller
shall not enter into any new leases or material modifications of existing
leases thereafter without the consent of Buyer (which consent will not be
unreasonably withheld or materially delayed); provided, however, Seller may
enter into the Pending Leases. Buyer hereby acknowledges its approval of
such Pending Leases. In no event shall Seller have any obligation to enter
into any new lease or modify any existing lease unless Buyer shall agree to
pay or reimburse Seller on the Closing Date for all tenant improvement
costs and leasing commissions incurred by Seller under or in connection
therewith (Buyer's agreement to pay or reimburse for such amounts not to be
unreasonably withheld); provided, however, nothing in the foregoing shall
limit or modify the obligations of the parties under paragraph 5D(3) above.
8. Indemnification.
A. By Buyer. Buyer shall hold harmless, indemnify and defend Seller
from and against: (1) any and all third party claims for Buyer's torts or
breaches of contract related to the Property and occurring on or after the
Closing Date, (2) any and all loss, damage or third party claims in any way
arising from Buyer's inspections or examinations of the Property prior to
the Closing Date; and (3) all costs and expenses, including reasonable
attorney's fees, incurred by Seller as a result of the foregoing.
B. By Seller. Seller shall hold harmless, indemnify and defend Buyer
from and against: (1) any and all third party claims for Seller's torts or
breaches of contract related to the Property and occurring prior to the
Closing Date; and (2) all costs and expenses, including reasonable
attorney's fees, incurred by the Buyer as a result of such claims. The
foregoing indemnity shall not cover any matters relating to title or
marketability of the Property (Buyer relying on the coverage provided by
the Owner's Policy as to such matters).
C. Generally. Each indemnification under this Agreement shall be
subject to the following provisions: The indemnitee shall notify indemnitor
of any such claim against indemnitee within 30 days after it has actual
notice of such claim, but failure to notify indemnitor shall in no case
prejudice the rights of indemnitee under this Agreement unless indemnitor
shall be prejudiced by such failure and then only to the extent of such
prejudice. Should indemnitor fail to discharge or undertake to defend
indemnitee against such liability within 10 days after the indemnitee gives
the indemnitor written notice of the same, then indemnitee may settle such
liability, and indemnitor's liability to indemnitee shall be conclusively
established by such settlement, the amount of such liability to include
both the settlement consideration and the reasonable costs and expenses,
including attorneys' fees, incurred by indemnitee in effecting such
settlement.
9. DISPOSITION OF DEPOSITS. IF THE TRANSACTION HEREIN PROVIDED SHALL
NOT BE CLOSED BY REASON OF SELLER'S DEFAULT UNDER THIS AGREEMENT OR THE
FAILURE OF SATISFACTION OF THE CONDITIONS DESCRIBED IN PARAGRAPH 4 HEREOF
OR THE TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH PARAGRAPH 6 HEREOF,
THEN THE ESCROW DEPOSIT SHALL BE RETURNED TO BUYER, AND NEITHER PARTY SHALL
HAVE ANY FURTHER OBLIGATION OR LIABILITY TO THE OTHER; PROVIDED, HOWEVER,
IF THE TRANSACTIONS HEREUNDER SHALL FAIL TO CLOSE SOLELY BY REASON OF
SELLER'S DEFAULT, AND BUYER SHALL HAVE FULLY PERFORMED ITS OBLIGATIONS
HEREUNDER AND SHALL BE READY, WILLING AND ABLE TO CLOSE, THEN BUYER SHALL
BE ENTITLED TO SPECIFICALLY ENFORCE THIS AGREEMENT (BUT NO OTHER ACTION,
FOR DAMAGES OR OTHERWISE, SHALL LIE). IN THE EVENT THE TRANSACTION HEREIN
PROVIDED SHALL NOT ClOSE BY REASON OF BUYER'S DEFAULT UNDER THIS AGREEMENT,
THEN THE ESCROW DEPOSIT SHALL BE DELIVERED TO SELLER AS FELL COMPENSATION
AND LIQUIDATED DAMAGES UNDER AND IN CONNECTION WITH THIS AGREEMENT. IN THE
EVENT THE TRANSACTION HEREIN PROVIDED SHALL CLOSE, THE ESCROW DEPOSIT SHALL
BE APPLIED AS A PARTIAL PAYMENT OF THE PURCHASE PRICE. IN CONNECTION WITH
THE FOREGOING, THE PARTIES RECOGNIZE THAT SELLER WILL INCUR EXPENSE IN
CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THAT THE
PROPERTY HAS BEEN AND WILL CONTINUE TO BE REMOVED FROM THE MARKET; FURTHER,
THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF
DETRIMENT TO SELLER CAUSED BY THE BREACH BY BUYER UNDER THIS AGREEMENT AND
THE FAILURE OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT
OF BUYER'S BREACH OR DEFAULT. IN THE EVENT THE SALE OF THE PROPERTY SHALL
NOT BE CONSUMMATED ON ACCOUNT OF BUYER'S DEFAULT, THEN THE RETENTION OF THE
ESCROW DEPOSIT SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY UNDER THIS
AGREEMENT BY REASON OF SUCH DEFAULT, SUBJECT TO THE PROVISIONS OF PARAGRAPH
lOI HEREOF.
__________________ __________________
Seller' s Initials Buyer's Initials
10. Miscellaneous.
A. Brokers. Except for JMB Realty Corporation (whose fees shall be
paid by Seller), Seller represents and warrants to Buyer, and Buyer
represents and warrants to Seller, that no broker or finder has been
engaged by it, respectively, in connection with any of the transactions
contemplated by this Agreement or to its knowledge is in any way connected
with any of such transactions. In the event of a claim for broker's or
finder's fee or commissions in connection herewith, then Seller shall
indemnify and defend Buyer from the same if it shall be based upon any
statement or agreement alleged to have been made by Seller, and Buyer shall
indemnify and defend Seller from the same if it shall be based upon any
statement or agreement alleged to have been made by Buyer. The
indemnification obligations under this paragraph 10A shall survive the
closing of the transactions hereunder or the earlier termination of this
Agreement.
B. Limitation of Liability.
(1) Notwithstanding anything to the contrary contained herein, if the
closing of the transactions hereunder shall have occurred (and Buyer shall
not have waived, relinquished or released any applicable rights in further
limitation), the aggregate liability of Seller arising pursuant to or in
connection with the representations, warranties, indemnifications,
covenants or other obligations (whether express or implied) of Seller under
this Agreement (or any document executed or delivered in connection
herewith) shall not exceed $475,000.
(2) No constituent partner in or agent of Seller (other than JMB
Income Properties, LTD-X ("JMB-X") but not any of its constituent partners
or agents), nor any advisor, trustee, member, director, officer, employee,
beneficiary, shareholder, participant, representative or agent of any
corporation or trust that is or becomes a constituent partner in Seller or
JMB-X (including, but not limited to, Animas Holdings, Limited Partnership
and JMB Realty Corporation) shall have any personal liability, directly or
indirectly, under or in connection with this Agreement or any agreement
made or entered into under or pursuant to the provisions of this Agreement,
or any amendment or amendments to any of the foregoing made at any time or
times, heretofore or hereafter, and Buyer and its successors and assigns
and, without limitation, all other persons and entities, shall look solely
to the assets of Seller and/or JMB-X for the payment of any claim or for
any performance, and Buyer, on behalf of itself and its successors and
assigns, hereby waives any and all such personal liability. Notwithstanding
anything to the contrary contained in this Agreement, neither the negative
capital account of any constituent partner in Seller (including JMB-X) or
in any other constituent partner of Seller, nor any obligation of any
constituent partner in Seller (including JMB-X) or in any other constituent
partner of Seller to restore a negative capital account or to contribute
capital to Seller (including JMB-X) or to any other constituent partner of
Seller, shall at any time be deemed to be the property or an asset of
Seller, or any such other constituent partner, including JMB-X (and neither
Buyer nor any of its successors or assigns shall have any right to collect,
enforce or proceed against or with respect to any
such negative capital account of partner's obligation to restore or
contribute).
C. Entire Agreement. This Agreement contains the entire agreement
between the parties respecting the matters herein set forth and supersedes
all prior agreements between the parties hereto respecting such matters.
This Agreement may not be modified or amended except by written agreement
signed by both parties.
D. Time of the Essence. Time is of the essence of this Agreement.
E. Interpretation. Paragraph headings shall not be used in construing
this Agreement. Each party acknowledges that such party and its counsel,
after negotiation and consultation, have reviewed and revised this
Agreement. As such, the terms of this Agreement shall be fairly construed
and the usual rule of construction, to the effect that any ambiguities
herein should be resolved against the drafting party, shall not be employed
in the interpretation of this Agreement or any amendments, modifications or
exhibits hereto or thereto.
F. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of New Mexico.
G. Successors and Assigns. Buyer may not assign or transfer its
rights or obligations under this Agreement without the prior written
consent of Seller (in which event such transferee shall assume in writing
all of the transferor's obligations hereunder, but such transferor shall
not be released from its obligations hereunder); provided, however, Buyer
may assign its interest in this Agreement to a limited partnership in which
Buyer is the managing general partner and has not less than a 51% interest
in capital and profits in such limited partnership. No consent given by
Seller to any transfer or assignment of Buyer's rights or obligations
hereunder shall be construed as a consent to any other transfer or
assignment of Buyer's rights or obligations hereunder. No transfer or
assignment in violation of the provisions hereof shall be valid or
enforceable. Subject to the foregoing, this Agreement and the terms and
provisions hereof shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
H. Notices. Any notice which a party is required or may desire to
give the other shall be in writing and shall be sent by personal delivery
or by mail (either [i] by United States registered or certified mail,
return receipt requested, postage prepaid, or [ii] by Federal Express or
similar generally recognized overnight carrier regularly providing proof of
delivery), addressed as follows (subject to the right of a party to
designate a different address for itself by notice similarly given):
To Buyer:
35 Century Park-Way
Salt Lake City, Utah 84115
Attention: Mr. G. Rex Frazier
and
David R. Sabey, Esq.
To Seller:
900 North Michigan Avenue
l9th Floor
Chicago, Illinois 60611
Attention: Mr. James M. Whittington
With Copy To:
Pircher, Nichols & Meeks
1999 Avenue of the Stars
Suite 2600
Los Angeles, California 90067
Attention: Real Estate Notices (GML)
Any notice so given by mail shall be deemed to have been given as of the
date of delivery (whether accepted or refused) established by U.S. Post
Office return receipt or the overnight carrier's proof of delivery, as the
case may be. Any such notice not so given shall be deemed given upon
receipt of the same by the party to whom the same is to be given.
I. Legal Costs. Except as set forth in paragraph 5C above, the
parties hereto agree that they shall pay directly any and all legal costs
which they have incurred on their own behalf in the preparation of this
Agreement, all deeds and other agreements pertaining to this transaction
and that such legal costs shall not be part of the closing costs. In
addition, if either Buyer or Seller brings any suit or other proceeding
with respect to the subject matter or the enforcement of this Agreement,
the prevailing party (as determined by the court, agency or other authority
before which such suit or proceeding is commenced), in addition to such
other relief as may be awarded, shall be entitled to recover reasonable
attorneys' fees, expenses and costs of investigation actually incurred. The
foregoing includes, but is not limited to, attorneys' fees, expenses and
costs of investigation (including, without limitation, those incurred in
appellate proceedings), costs incurred in establishing the right to
indemnification, or in any action or participation in, or in connection
with, any case or proceeding under Chapter 7, 11 or 13 of the Bankruptcy
Code (11 United States Code Sections 101 et seq.), or any successor
statutes.
J. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original instrument
but all of such counterparts together constituting but one agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
ANIMAS VALLEY MALL ASSOCIATES,
an Illinois general partnership
By: JMB INCOME PROPERTIES, LTD.-X,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation
General Partner
By:_____________________________
Name: James M .Whittington____________________
Title: Managing Director____________________
"Seller"
PRICE DEVELOPMENT COMPANY, LIMITED
PARTNERSHIP,
a Maryland limited partnership
By: JP REALTY, INC.,
a Maryland corporation
General Partner
By:______________________________
Name:_G. Rex Frazier________________________
Title: President________________________
"Buyer"
ESCROW HOLDER'S ACKNOWLEDGEMENT
The undersigned hereby executes this Agreement to evidence its
agreement to act as Escrow Holder in accordance with the terms of this
Agreement.
Date:_____________________ FIRST AMERICAN TITLE INSURANCE COMPANY,
a_California
corporation______________________________________
By:_____________________________________
Name:_Cindy
Lund_______________________________
Title: Escrow
Officer_______________________________
"Escrow Holder"
EXHIBIT LIST
"A-1" - Property Description
"A-2" - Excluded Property
"B" - Personal Property
"C" - Permitted Exceptions
"D" - Operating Agreement Description
"E" - REA Estoppel Certificate
"F - "Tenant Estoppel Certificate
"F-2" - First National Bank Estoppel Certificate
"G" - Deed
"H" - Operating Agreement Assignment and Assumption
"I' - Assignment and Assumption Agreement
"J" - Exceptions to Seller's Representations and Warranties
"K-1" - List of Leases
"K-2" - Rent Roll
"L" - Service Agreements
"M" - Environmental Reports Description
"N" - Pending Leases
OUTPARCEL PURCHASE AGREEMENT
(Outparcel Sale - Animas Valley Mall; Farmington, New Mexico)
THIS AGREEMENT is made and entered into as of the 27th day of
June, 1995, by and between ANIMAS VALLEY MALL ASSOCIATES, an Illinois
general partnership (hereinafter called "Seller"), and PRICE DEVELOPMENT
COMPANY, LIMITED PARTNERSHIP, a Maryland limited partnership (hereinafter
called "Buyer").
R E C I T A L S
A. Seller is the owner of that certain real property which
constitutes an outparcel portion of that certain shopping center located at
the intersection of Largo Street and Highway 50, in the City of Farmington,
County of San Juan, State of New Mexico, and sometimes known as "Animas
Valley Mall."
B. Buyer desires to purchase such outparcel premises on the terms
and conditions hereinafter documented.
NOW, THEREFORE, in consideration of the mutual undertakings
of the parties hereto, it is hereby agreed as follows:
1. Purchase and Sale. Seller shall sell to Buyer, and Buyer shall
purchase from Seller, the land (the "Land") described in Exhibit "A-1"
attached hereto and made a part hereof, together with all right, title and
interest of Seller in and to all improvements, structures, supplies and
fixtures, if any, located upon the Land, and, all right, title and interest
of Seller in and to all reciprocal easement and operating agreements,
contract rights and agreements, (hereinafter, collectively, the "Outparcel
Property"), all upon the terms, covenants and conditions hereinafter set
forth. Notwithstanding anything to the contrary contained herein, the
Outparcel Property does not include the shopping center premises described
in Exhibit "A-2" attached hereto and made a part hereof.
2. Purchase Price. The purchase price (the "Purchase Price") for
the Outparcel Property shall be the sum of $300,000.
3. Payment of Purchase Price. The Purchase Price shall be paid
to Seller by Buyer as follows:
A. Escrow Deposits. Concurrently herewith, Buyer shall deliver a
bank or cashier's check or other good funds in the amount of $25,000 to
First American Title Insurance Company, National/Commercial Division, at
its offices at 338 East 400 South, Salt Lake City, Utah 84111 (Attention:
Cindy Lund), which company, in its capacity as escrow holder hereunder, is
called "Escrow Holder"). The proceeds of such check or
other goods shall be deposited and held by Escrow Holder as a deposit
against the Purchase Price in accordance with the terms and provisions of
this Agreement. As used herein, the term "Escrow Deposit" shall mean the
foregoing $25,000 deposit, together with all interest thereon. At all
times in which the Escrow Deposit is being held by the Escrow Holder, the
Escrow Deposit shall be invested by Escrow Holder in the following
investments ("Approved Investments"): (i) United States Treasury
obligations, (ii) United States Treasury backed repurchase agreements
issued by a major national money center banking institution reasonably
acceptable to Seller, or (iii) such other manner as may be reasonably
agreed to by Seller and Buyer. The Escrow Deposit shall be disposed of by
Escrow Holder only as provided in this Agreement. Seller and Buyer agree to
promptly execute such additional escrow instructions as may be required by
Escrow Holder provided the same are consistent with the terms of this
Agreement and are otherwise reasonably satisfactory to the parties.
B. Closing Payment. An amount equal to the Purchase Price, as
adjusted by the application of the Escrow Deposit and by the prorations and
credits specified herein, shall be paid in cash on the "Closing Date", as
hereinafter defined (the amount to be paid under this subparagraph B being
herein called the "Closing Payment").
4. Conditions Precedent
A. Title Matters.
(1) Title Report. Buyer has received Commitment for Title
Insurance No. B-614-ROT/mw dated March 22, 1995 ("Title Commitment")
covering, among other premises, the Outparcel Property from First American
Title Insurance Company (which company, in its capacity as title insurer
hereunder, is herein called the "Title Company"). In addition, Buyer has
received an updated survey of the Outparcel Property, among other premises,
dated June 12, 1995, prepared by Cheney-Walters-Echols, Inc. ("Survey").
Buyer hereby approves the exceptions to title shown on the Title Commitment
and the matters disclosed on the Survey, subject to those objections, if
any, specified in Exhibit "B" attached hereto and made a part hereof (such
approved exceptions being herein being herein called the "Permitted
Exceptions"). Approval by Buyer of any additional exceptions to title or
survey matters disclosed after the date hereof shall be a condition
precedent to Buyer's obligation to purchase the Outparcel Property. Unless
Buyer gives written notice that it approves any such additional exceptions
to title or survey matters, stating the exceptions so approved, on or
before the sooner to occur of 5 days after receipt of written notice
thereof or the Closing Date, Buyer shall be deemed to have disapproved said
exceptions. If, for any reason, on or before the Closing Date Seller does
not cause any exceptions to title which Buyer has not approved (to the
extent Buyer is permitted hereunder to so disapprove) to be removed at no
cost or expense to Buyer (Seller having the right but not the obligation to
do so), the obligation of Seller to sell, and Buyer to Buy, the Outparcel
Property as herein provided shall terminate (and Seller and Buyer shall
have no further obligations in connection herewith); provided, however,
Seller shall cause any mechanic's liens to be paid off (or insured over in
the Title Commitment, such affirmative insurance, if any, being at Seller's
cost and expense). Buyer shall have the option to waive the condition
precedent set forth in this paragraph 4A(1) by notice to Seller. In the
event of such waiver, such condition shall be deemed satisfied.
(2) Exceptions to Title. Buyer shall be obligated to accept title
to the Outparcel Property, subject to the following exceptions to title:
(a) Real estate taxes and assessments not yet due and payable (it
being understood that such taxes and assessment shall be subject to
proration as set forth in paragraph 5D(1)(a) hereof;
(b) The printed exceptions which appear in the standard form ALTA
owner's policy of title insurance (with "extended coverage") issued by
Title Company in the State of New Mexico; and
(c) Such exceptions to title as may be approved by Buyer pursuant
to the provisions of subparagraph A(1) above. Conclusive evidence of the
availability of such title shall be the willingness of Title Company to
issue to Buyer on the Closing Date an ALTA owner's title insurance policy
(with "extended coverage") in the standard form issued in the State of New
Mexico ("Owner's Policy"), in the face amount of the Purchase Price, which
policy shall show (i) title to the Outparcel Property to be vested of
record in Buyer, and (ii) the Permitted Exceptions to be the only
exceptions to title.
B. Completed Due Diligence.
(1) Price Reflective of Reviews. Buyer has completed all of Buyer's
due diligence examinations, reviews and inspections of all matters
pertaining to the purchase of the Outparcel Property, including all leases,
reciprocal easement and operating agreements, service contracts, survey and
title matters, and all physical, environmental and legal compliance matters
and conditions respecting the Outparcel Property. Buyer acknowledges that
Buyer and Seller have discussed the results of Buyer's due diligence
examinations, reviews and inspections and that the Purchase Price has been
adjusted to appropriately take such due diligence matters into account to
Buyer's satisfaction.
(2) Conduct of Reviews. Buyer hereby represents and warrants to
Seller that Buyer at all times conducted its due diligence review,
inspections and examinations in a manner so as to not cause damage, loss,
cost or expense to Seller or the Outparcel Property and so as not interfere
with or disturb any tenant at the Outparcel Property, and Buyer will
indemnify, defend, and hold Seller and the Outparcel Property harmless from
and against any such damage, loss, cost or expense (the foregoing
obligation
surviving any termination of this Agreement). If the transactions hereunder
shall fail to close, Buyer shall promptly deliver to Seller (without
representation or warranty) true, accurate and complete copies of any
written reports relating to the Outparcel Property prepared for or on
behalf of Buyer by any third party and shall return all documents and other
materials furnished by Seller hereunder. Buyer shall keep all information
or data received or discovered in connection with any of the inspections,
reviews or examinations strictly confidential.
C. Performance by Seller; No Material Adverse Change. The
performance and observance, in all material respects, by Seller of all
covenants and agreements of this Agreement to be performed or observed by
Seller prior to or on the Closing Date shall be a condition precedent to
Buyer's obligation to purchase the Outparcel Property. In addition, in the
event that the "Seller Closing Certificate" (as hereinafter defined) shall
disclose any changes in any material respect in the representations and
warranties of Seller contained in paragraph 7A below which are not
otherwise permitted or contemplated by the terms of this Agreement, then
Buyer shall have the right to terminate this Agreement. Buyer shall have
the option to waive the condition precedent set forth in this paragraph 4C
by written notice to Seller. In the event of such waiver, such condition
shall be deemed satisfied.
D. Performance by Buyer; No Material Adverse Change. The
performance and observance, in all material respects, by Buyer of all
covenants and agreements of this Agreement to be performed or observed by
it prior to or on the Closing Date shall be a condition precedent to
Seller's obligation to sell the Outparcel Property. In addition, in the
event that the "Buyer Closing Certificate" (as hereinafter defined) shall
disclose any changes in any material respect in the representations and
warranties of Buyer contained in paragraph 7B below which are not permitted
or contemplated by the terms of this Agreement, then Seller shall have the
right to terminate this Agreement. Seller shall have the option to waive
the condition precedent set forth in this paragraph 4D by written notice to
Buyer. In the event of such waiver, such condition shall be deemed
satisfied.
5. Closing Procedure. The sale and purchase herein provided
shall be consummated at a closing conference ("Closing Conference"), which
shall be held at Buyer's offices at 35 Century Park-Way, Salt Lake City,
Utah. In order to facilitate the closing of the transactions hereunder,
the parties will meet at a pre-closing conference commencing June 27, 1995,
with the intention to finalize the closing matters contemplated herein in a
timely manner so as to cause the actual closing hereunder to occur on the
Closing Date. As used herein, "Closing Date" means June 30, 1995, or such
earlier date as may be agreed upon by Buyer and Seller; provided, however,
if any condition specified in this Agreement is not satisfied by the
Closing Date, either Seller or Buyer may, at its sole election, extend the
Closing Date for various periods not to exceed 30 days in the aggregate in
order to attempt to cause such conditions to be satisfied in accordance
with, and subject to the limitations of, this Agreement.
A. Escrow. On or before the Closing Date, the parties shall
deliver to Title Company the following: (1) by Seller, a duly executed and
acknowledged original of a special warranty deed ("Deed") in the form of
Exhibit "C" attached hereto and made a part hereof, and (2) by Buyer, the
Closing Payment in immediately available federal funds. Such deliveries
shall be made pursuant to escrow instructions ("Escrow Instructions") to be
executed among Buyer, Seller and Title Company in form reasonably
acceptable to such parties in order to effectuate the intent hereof. The
conditions to the closing of such escrow shall include the Title Company's
receipt of the Deed and the Closing Payment and a notice from each of Buyer
and Seller authorizing Title Company to close the transactions as
contemplated herein (each of Buyer and Seller being obligated to deliver
such authorization notice at the Closing Conference as soon as it is
reasonably satisfied that the other party is in a position to deliver the
items to be delivered by such other party under subparagraph B below).
B. Delivery to Parties. Upon the satisfaction of the conditions
set forth in the Escrow Instructions, then (x) the Deed shall be delivered
to Buyer by Title Company's depositing the same for recordation, (y) the
Closing Payment (and the Deposit) shall be delivered by Title Company to
Seller and (z) at the Closing Conference, the following items shall be
delivered:
(1) Seller Deliveries. Seller shall deliver to Buyer the
following:
(a) A duly executed and acknowledged bill of sale, assignment and
assumption agreement ("Assignment and Assumption Agreement") with respect
to any contracts to be assigned hereunder in the form of Exhibit "D"
attached hereto and made a part hereof;
(b) Duly executed and acknowledged certificates regarding the
"non-foreign" status of Seller;
(c) A certificate of Seller ("Seller Closing Certificate") updating
the representations and warranties contained in paragraph 7A hereof to the
Closing Date and noting any changes thereto;
(d) Evidence reasonably satisfactory to Buyer and Title Company
respecting the due organization and execution of this Agreement and the
documents required to be delivered hereunder; and
(e) Such additional documents as may be reasonably required by
Buyer and Title Company in order to consummate the transactions hereunder
(provided the same do not
materially increase the costs to, or liability or obligations of, Seller
in a manner not
otherwise provided for herein).
(2) Buyer Deliveries. Buyer shall deliver to Seller the
following:
(a) A duly executed and acknowledged Assignment and Assumption
Agreement;
(b) A certificate of Buyer ("Buyer Closing Certificate") updating
the
representations and warranties contained in paragraph 7B hereof to the
Closing Date and noting any changes hereto;
(c) Evidence reasonably satisfactory to Seller and Title Company
respecting the due organization of Buyer and the due authorization and
execution of this Agreement and the documents required to be delivered
hereunder; and
(d) Such additional documents as may be reasonably required by
Seller and Title Company in or to consummate the transactions hereunder
(provided the same do not materially increase the costs to, or liability or
obligations of, Buyer in a manner not otherwise provided for herein).
C. Closing Costs. Buyer shall pay all closing costs in
connection with the transactions hereunder, including, without limitation,
all title insurance premiums and costs, all survey costs, including the
costs to obtain the Survey, all escrow fees of Escrow Holder, all
recording, documentary, transfer, intangible, sales and use taxes, if any,
payable in connection with the transfers contemplated in this Agreement,
and all fees, costs or expenses in connection with Buyer's due diligence
reviews hereunder. Seller and Buyer shall pay their respective shares of
prorations as hereinafter provided.
D. Prorations.
(1) Items to be Prorated. The following shall be prorated between
Seller and Buyer as of the Closing Date:
(a) Taxes. All real estate taxes and assessments on the Outparcel
Property for the current year. In no event shall Seller be charged with or
be responsible for any increase in the taxes on the Outparcel Property
resulting from the sale of the Outparcel Property or from any improvements
made or leases entered into on or after the Closing Date.
(b) Operating Expenses. All operating income or expenses
respecting the Property, to the extent the same are customarily prorated
between sellers and buyers in purchase and sale transactions similar to the
purchase and sale of the property.
(2) Calculation. The prorations and payments shall be made on the
basis of a written statement submitted to Buyer and Seller by Escrow Holder
prior to the Close of Escrow and approved by Buyer and Seller. In the
event any prorations or apportionments made under this subparagraph D shall
prove to be incorrect for any
reason, then any party shall be entitled to an adjustment to correct the
same. Any item which cannot be finally prorated because of the
unavailability of information shall be tentatively prorated on the basis of
the best data then available and reprobated when the information is
available.
6. Condemnation of Outparcel Property. In the event that, after
the date hereof but prior to the Closing Date, either any portion of the
Outparcel Property is taken pursuant to eminent domain proceedings, Seller
shall have no obligation to repair or replace any such damage or
destruction. In the event of any condemnation, the Purchase Price shall be
reduced by an amount equal to the condemnation award in connection
therewith. Seller shall in all events retain its claims to, and shall be
entitled to receive, all condemnation awards (and Buyer shall reasonably
cooperate with Seller in connection with pursuing any such amounts or
claims). In the event the condemnation award shall exceed $25,000, either
Seller or Buyer may, at its option, terminate this Agreement by notice to
the other party, given on or before the Closing Date.
7. Representations, Warranties and Covenants.
A. Representations, Warranties and Covenants of Seller.
(1) General Disclaimer. Except as specifically set forth in
paragraph 7A(2) below, the sale of the Outparcel Property hereunder is and
will be made on an "as is" basis, without representations and warranties of
any kind or nature, express, implied or otherwise, including, but not
limited to, any representation or warranty concerning title to the
Outparcel Property, the physical condition of the Outparcel Property
(including, but not limited to, the condition of the soil or the
improvements, if any), the environmental condition of the Outparcel
Property (including, but not limited to, the presence or absence of
hazardous substances on or respecting the Outparcel Property), the
compliance of the Outparcel Property with applicable laws and regulations
(including, but not limited to, zoning and building codes or the status of
development or use rights respecting the Outparcel Property), the financial
condition of the Outparcel Property or any other representation or warranty
respecting any income, expenses, charges, liens or encumbrances, rights or
claims on, affecting or pertaining to the Outparcel Property or any part
thereof. Buyer acknowledges that, during the Due Diligence Period, Buyer
has examined, reviewed and inspected all matters which in Buyer's judgment
bear upon the Outparcel Property and its value and suitability for Buyer's
purposes. Except as to matters specifically set forth in paragraph 7A(2)
below, Buyer will acquire the Outparcel property solely on the basis of its
own physical and financial examinations, reviews and inspections and the
title insurance protection afforded by the Owner's Policy.
(2) Limited Representations and Warranties of Seller.
Subject to the provisions of paragraph 7A(1) above, Seller hereby
represents and warrants that, except as set forth in Exhibit "E"
attached hereto and made a part hereof:
(a) Litigation; Bankruptcy. There is no pending nor, to
Seller's knowledge, any written notice to Seller threatening action,
litigation, condemnation or other proceeding against the Outparcel
Property or against Seller with respect to the Outparcel Property nor
are there any pending bankruptcy or insolvency proceedings against
Seller.
(b) Compliance. Seller has received no written notice from any
governmental authority having jurisdiction over the Outparcel Property
to the effect that the Outparcel Property is not in compliance with
applicable laws and ordinances.
(c) Service Agreements and Other Contracts. Other than the
"operating Agreement" described in Exhibit "F" attached hereto, the
Permitted Exceptions and those which are cancelable on 30 days' notice,
Seller has not entered into any service agreements or contracts
("Service Agreements") or other agreements (other than as set forth in
this Agreement) relating to the Outparcel Property which will be in
force on the Closing Date, and Seller has not received any written
notice of any material default thereunder that remains uncured. Without
limitation thereon, there are no leases demising any portion of the
Property.
(d) Environmental Matters. Except as set forth in the
"Environmental Reports" (as defined in Exhibit "G"), to Seller's
knowledge there has been no deposit, storage, removal, burial or
discharge of any "Hazardous Material" at, upon, under or within the
Outparcel Property, in an amount which would, as of the date hereof,
give rise to an "Environmental Compliance Cost". The term "Hazardous
Material" shall mean (i) asbestos and any chemicals, flammable
substances or explosives, any radioactive materials (including radon),
any hazardous wastes or substances which have, as of the date hereof,
been determined by any applicable Federal, State or local government law
to be hazardous or toxic by the U.S. Environmental Protection Agency,
the U.S. Department of Transportation, and/or any instrumentality now or
hereafter authorized to regulate materials and substances in the
environment
which has jurisdiction over the Outparcel Property ("Environmental
Agency"), and (ii) any oil, petroleum or petroleum derived substance,
any drilling fluids, produced waters and other wastes associated with
the exploration, development or production of crude oil, which materials
listed under items (i) and(ii) above cause the Outparcel Property (or
any part thereof) to be in material violation of any applicable
environmental laws or the regulations of any Environmental Agency;
provided, however, that the term "Hazardous Material" shall not include
motor oil and gasoline contained in or discharged from vehicles not used
primarily for the transport of motor oil or gasoline. The term
"Environmental Compliance Cost" means any reasonable out-of-pocket cost,
fee or expense incurred directly to satisfy any requirement imposed by
an Environmental Agency to bring the Outparcel Property into compliance
with applicable Federal, State and local laws and regulations directly
relating to the existence on the Outparcel Property of any Hazardous
Material.
(e) Due Authority. This Agreement and all agreements,
instruments and documents herein provided to be executed or to be caused
to be executed by Seller are and on the Closing Date will be duly
authorized, executed and delivered by and are binding upon Seller.
Seller is a limited partnership, duly organized and validly existing
under the laws of the State of Illinois, and is duly authorized and
qualified to do all things required of it under this Agreement. Seller
has the capacity and authority to enter into this Agreement and
consummate the transactions herein provided.
(f) Seller's Knowledge. The term "to Seller's knowledge" or
other similar term, as used herein, means the knowledge of James M.
Whittington, Douglas Welker and Margaret Lannen (such knowledge being
deemed to be only the actual knowledge of such individuals without any
duty to investigate).
B. Representations and Warranties of Buyer. Buyer hereby
represents and warrants that:
(1) This Agreement and all agreements, instruments and documents
herein provided to be executed or to be caused to be executed by Buyer
are and on the Closing Date will be duly authorized, executed and
delivered by and are binding upon Buyer.
(2) Buyer is a limited partnership, duly organized and validly
existing under the laws of the State of Maryland, and is duly authorized
and qualified to do all things required of it under this Agreement.
(3) Buyer has the capacity and authority to enter into this
Agreement and consummate the transactions herein provided.
C. Survival. Any cause of action of a party for a breach of the
foregoing representations and warranties shall survive for a period of
one year after the Closing Date, at which time such representations and
warranties (and any cause of action resulting from a breach thereof not
then in litigation) shall terminate. Notwithstanding the foregoing, if
Buyer shall have actual knowledge as of the closing date that any of the
representations or warranties of Seller is in breach or default of any
of its obligations under this Agreement, and Buyer nonetheless closes
the transactions hereunder and acquires the Outparcel Property, then
Seller shall have no liability or obligation respecting such false or
inaccurate representations or warranties or other breach or default (and
any cause of action resulting therefrom shall terminate upon such
closing hereunder).
D. Interim Covenants of Seller. Until the Closing Date or the
sooner termination of this Agreement:
(1) Seller shall maintain the Outparcel Property in the same
manner as prior hereto pursuant to its normal course of business (such
maintenance obligations not including extraordinary capital expenditures
or expenditures not incurred in such normal course of business), subject
to reasonable wear and tear and further subject to destruction by
casualty or other events beyond the control of Seller.
(2) Seller shall not enter into any service contracts, leases or
other similar agreements without the prior consent of Buyer, except
those deemed reasonably necessary by Seller which are cancelable on 30
days' notice.
8. Indemnification.
A. By Buyer. Buyer shall hold harmless, indemnify and defend
Seller from and against: (1) any and all third party claims for Buyer's
torts or breaches of contract related to the Outparcel Property and
occurring on or after the Closing Date, (2) any and all loss, damage or
third party claims in any way arising from Buyer's inspections or
examinations of the Outparcel Property prior to the Closing Date; and
(3) all costs and expenses, including reasonable attorney's fees,
incurred by Seller as a result of the foregoing.
B. By Seller. Seller shall hold harmless, indemnify and
defend Buyer from and against: (1) any and all third party claims for
Seller's torts or breaches of contract related to the Outparcel Property
and occurring prior to the Closing Date; and (2) all costs and expenses,
including reasonable attorney's fees, incurred by the Buyer as a result
of such claims. The foregoing indemnity shall not cover any matters
relating to title or marketability of the Outparcel Property (Buyer
relying on the coverage provided by the Owner's Policy as to such
matters).
C. Generally. Each indemnification under this Agreement shall
be subject to the following provisions: The indemnitee shall notify
indemnitor of any such claim against indemnitee within 30 days after it
has actual notice of such claim, but failure to notify indemnitor shall
in no case prejudice the rights of indemnitee under this Agreement
unless indemnitor shall be prejudiced by such failure and then only to
the extent of such prejudice. Should indemnitor fail to discharge or
undertake to defend indemnitee gives the indemnitor written notice of
the same, then indemnitee may settle such liability, and indemnitor's
liability to indemnitee shall be conclusively established by such
settlement, the amount of such liability to include both the settlement
consideration and the reasonable costs and expenses, including
attorneys' fees, incurred by indemnitee in effecting such settlement.
9. DISPOSITION OF DEPOSITS. IF THE TRANSACTION HEREIN PROVIDED
SHALL NOT BE CLOSED BY REASON OF SELLER'S DEFAULT UNDER THIS AGREEMENT
OR THE FAILURE OF SATISFACTION OF THE CONDITIONS DESCRIBED IN PARAGRAPH
4 HEREOF OR THE TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH
PARAGRAPH 6 HEREOF, THEN THE ESCROW DEPOSIT SHALL BE RETURNED TO BUYER,
AND NEITHER PARTY SHALL HAVE ANY FURTHER OBLIGATION OR LIABILITY TO THE
OTHER; PROVIDED, HOWEVER, IF THE TRANSACTIONS HEREUNDER SHALL FAIL TO
CLOSE SOLELY BY REASON OF SELLER'S DEFAULT, AND BUYER SHALL HAVE FULLY
PERFORMED ITS OBLIGATIONS HEREUNDER AND SHALL BE READY, WILLING AND ABLE
TO CLOSE, THEN BUYER SHALL BE ENTITLED TO SPECIFICALLY ENFORCE THIS
AGREEMENT (BUT NO OTHER ACTION, FOR DAMAGES OR OTHERWISE, SHALL LIE). IN
THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE BY REASON OF
BUYER'S DEFAULT UNDER THIS AGREEMENT, THEN THE ESCROW DEPOSIT SHALL BE
DELIVERED TO SELLER AS FULL COMPENSATION AND LIQUIDATED DAMAGES UNDER
AND IN CONNECTION WITH THIS AGREEMENT. IN THE EVENT THE TRANSACTION
HEREIN PROVIDED SHALL CLOSE, THE ESCROW DEPOSIT SHALL BE APPLIED AS A
PARTIAL PAYMENT OF THE PURCHASE PRICE. IN CONNECTION WITH THE FOREGOING,
THE PARTIES RECOGNIZE THAT SELLER WILL INCUR EXPENSE IN CONNECTION WITH
THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THAT THE OUTPARCEL
PROPERTY HAS BEEN AND WILL CONTINUE TO BE REMOVED FROM THE MARKET;
FURTHER, THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN
THE EXTENT OF DETRIMENT TO SELLER CAUSED BY THE BREACH BY BUYER UNDER
THIS AGREEMENT AND THE FAILURE OF THE CONSUMMATION OF THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER
SHOULD RECEIVE AS A RESULT OF BUYER'S BREACH OR DEFAULT. IN THE EVENT
THE SALE OF THE OUTPARCEL PROPERTY SHALL NOT BE CONSUMMATED ON ACCOUNT
OF BUYER'S DEFAULT, THEN THE RETENTION OF THE ESCROW DEPOSIT SHALL BE
SELLER'S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT BY REASON OF
SUCH DEFAULT, SUBJECT TO THE PROVISIONS OF PARAGRAPH lOI HEREOF.
_________________ _________________
Seller's Initials Buyer's Initials
10. Miscellaneous.
A. Brokers. Except for JMB Realty Corporation (whose fees
shall be paid by Seller), Seller represents and warrants to Buyer, and
Buyer represents and warrants to Seller, that no broker or finder has
been engaged by it, respectively, in connection with any of the
transactions contemplated by this Agreement or to its knowledge is in
any way connected with any of such transactions. In the event of a claim
for broker's or finder's fee or commissions in connection herewith, then
Seller shall indemnify and defend Buyer from the same if it shall be
based upon any statement or agreement alleged to have been made by
Seller, and Buyer shall indemnify and defend Seller from the same if it
shall be based upon any statement or agreement alleged to have been made
by Buyer. The indemnification obligations under this paragraph lOA shall
survive the closing of the transactions hereunder or the earlier
termination of this Agreement.
B. Limitation of Liability.
(1) Notwithstanding anything to the contrary contained herein, if
the closing of the transactions hereunder shall have occurred (and Buyer
shall not have waived, relinquished or released any applicable rights in
further limitation), the aggregate liability of Seller arising pursuant
to or in connection with the representations, warranties,
indemnifications, covenants or other obligations (whether express or
implied) of Seller under this Agreement (or any document executed or
delivered in connection herewith) shall not exceed $25,000.
(2) No constituent partner in or agent of Seller (other than JMB
Income Properties, LTD-X ("JMB-X") but not any of its constituent
partners or agents), nor any advisor, trustee, member, director,
officer, employee, beneficiary, shareholder, participant, representative
or agent of any corporation or trust that is or becomes a constituent
partner in Seller or JMB-X (including, but not limited to, Animas
Holdings, Limited Partnership and JMB Realty Corporation) shall have any
personal liability, directly or indirectly, under or in connection with
this Agreement or any agreement made or entered into under or pursuant
to the provisions of this Agreement, or any amendment or amendments to
any of the foregoing made at any time or times, heretofore or hereafter,
and Buyer and its successors and assigns and, without limitation, all
other persons and entities, shall look solely to the assets of Seller
and/or JMB-X for the payment of any claim or for any performance, and
Buyer, on behalf of itself and its successors and assigns, hereby waives
any and all such personal liability. Notwithstanding anything to the
contrary contained in this Agreement, neither the negative capital
account of any constituent
partner in Seller (including JMB-X) or in any other constituent partner
of Seller, nor any obligation of any constituent partner in Seller
(including JMB-X) or in any other constituent partner of Seller to
restore a negative capital account or to contribute capital to seller
(including JMB-X) or to any other constituent partner of Seller, shall
at any time be deemed to be the property or an asset of Seller or any
such other constituent partner, including JMB-X (and neither Buyer nor
any of its successors or assigns shall have any right to collect,
enforce or proceed against or with respect to any such negative capital
account of partner's obligation to restore or contribute).
C. Entire Agreement. This Agreement contains the entire
agreement between the parties respecting the matters herein set forth
and supersedes all prior agreements between the parties hereto
respecting such matters. This Agreement may not be modified or amended
except by written agreement signed by both parties.
D. Time of the Essence. Time is of the essence of this
Agreement.
E. Interpretation. Paragraph headings shall not be used in
construing this Agreement. Each party acknowledges that such party and
its counsel, after negotiation and consultation, have reviewed and
revised this Agreement. As such, the terms of this Agreement shall be
fairly construed and the usual rule of construction, to the effect that
any ambiguities herein should be resolved against the drafting party,
shall not be employed in the interpretation of this Agreement or any
amendments, modifications or exhibits hereto or thereto.
F. Governing Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of New Mexico.
G. Successors and Assigns. Buyer may not assign or transfer its
rights or obligations under this Agreement without the prior written
consent of Seller (in which event such transferee shall assume in
writing all of the transferor's obligations hereunder, but such
transferor shall not be released from its obligations hereunder);
provided, however, Buyer may assign its interest in this Agreement to a
limited partnership in which Buyer is the managing general partner and
has not less than a 518 interest in capital and profits in such limited
partnership. No consent given by Seller to any transfer or assignment of
Buyer's rights or obligations hereunder shall be construed as a consent
to any other transfer or assignment of Buyer's rights or obligations
hereunder. No transfer or assignment in violation of the provisions
hereof shall be valid or enforceable. Subject to the foregoing, this
Agreement and the terms and provisions hereof shall inure to the benefit
of and be binding upon the successors and assigns of the parties.
H. Notices. Any notice which a party is required or may desire
to give the other shall be in writing and shall be sent by personal
delivery or by mail (either (i) by United States registered or certified
mail, return receipt requested, postage prepaid, or (ii) by Federal
Express or similar generally recognized overnight carrier regularly
providing proof of delivery), addressed as follows (subject to the right
of a party to designate a different address for itself by notice
similarly given):
To Buyer:
35 Century Park-Way
Salt Lake City, Utah 84115
Attention: Mr. G. Rex Frazier
and
David R. Sabey, Esq.
To Seller:
900 North Michigan Avenue
l9th Floor
Chicago, Illinois 60611
Attention: Mr. James M. Whittington
With Copy To:
Pircher, Nichols & Meeks
1999 Avenue of the Stars
Suite 2600
Los Angeles, California 90067
Attention: Real Estate Notices (GML)
Any notice so given by mail shall be deemed to have been given as of the
date of delivery (whether accepted or refused) established by U.S. Post
Office return receipt or the overnight carrier's proof of delivery, as
the case may be. Any such notice not so given shall be deemed given upon
receipt of the same by the party to whom the same is to be given.
I. Legal Costs. Except as set forth in paragraph 5C above, the
parties hereto agree that they shall pay directly any and all legal
costs which they have incurred on their own behalf in the preparation of
this Agreement, all deeds and other agreements pertaining to this
transaction and that such legal costs shall not be part of the closing
costs. In addition, if either Buyer or Seller brings any suit or other
proceeding with respect to the subject matter or the enforcement of this
Agreement, the prevailing party (as determined by the court, agency or
other authority before which such suit or proceeding is commenced), in
addition to such other relief as may be awarded, shall be entitled to
recover reasonable attorneys' fees, expenses and costs of investigation
actually incurred. The foregoing includes, but is not limited to,
attorneys' fees, expenses and costs of investigation (including, without
limitation, those incurred in appellate proceedings), costs
incurred in establishing the right to indemnification, or in any action
or participation in, or in connection with, any case or
proceeding under Chapter 7, 11 or 13 of the Bankruptcy Code (11 United
States Code Sections 101 et seq.), or any successor statutes.
J. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original instrument
but all of such counterparts together constituting but one agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
ANIMAS VALLEY MALL ASSOCIATES,
an Illinois general partnership
By: JMB INCOME PROPERTIES, LTD.-X,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation
General Partner
By: ___________________
Name: _James M. Whittington____________
Title: Managing Director_____________
"Seller"
PRICE DEVELOPMENT COMPANY, LIMITED
PARTNERSHIP,
a Maryland limited partnership
By: JP REALTY, INC.,
a Maryland corporation
General Partner
By:_______________________
Name: G. Rex Frazier_________________
Title:_President________________
"Buyer"
ESCROW HOLDER'S ACKNOWLEDGEMENT
The undersigned hereby executes this Agreement to evidence its
agreement to act as Escrow Holder in accordance with the terms of this
Agreement.
Date:__________________ FIRST AMERICAN TITLE INSURANCE COMPANY,
a _California
corporation___________________________________
By: __________________________________
Name: Cindy Lund_____________________________
Title:_Escroe Officer___________________________
"Escrow Holder"
EXHIBIT LIST
"A-1" - Property Description
"A-2" - Excluded Property
"B" - Personal Property
"C" - Permitted Exceptions
"D" - Operating Agreement Description
"E" - REA Estoppel Certificate
"F-1" - Tenant Estoppel Certificate
"F-2" - First National Bank Estoppel Certificate
"G" - Deed
"H" - Operating Agreement Assignment and
Assumption
"I" - Assignment and Assumption Agreement
"J" - Exceptions to Seller's Representations
and Warranties
"K-1" - List of Leases
"K-2" - Rent Roll
"L" - Service Agreements
"M" - Environmental Reports Description
"N" - Pending Leases
