EXHIBIT 10.4
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THIRD AMENDMENT TO PURCHASE AGREEMENT
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(Xxxxx Xxxxx Xxxx; Xxxxx Xxxxxxxx Xxxxx, Xxxxx)
This Third Amendment To Purchase Agreement ("Third Amendment") is
made and entered into as of the 11th day of August, 1999, by and among
NORTH HILLS MALL ASSOCIATES, an Illinois general partnership ("Seller"),
NORTH HILLS, LTD., a Texas limited partnership ("NHL"), and THE KEST
CHILDREN'S TRUST (the "Kest Trust", NHL and the Kest Trust are hereinafter
individually and collectively called "Buyer"), with reference to the
following facts:
A. Seller and Buyer entered into that certain "Purchase Agreement"
(the "Original Agreement") dated as of the 22nd day of June, 1999 (the
"Execution Date"), pursuant to which Seller agreed to sell, and Buyer
agreed to buy, that certain real property located in the City of North
Richland Hills, County of Tarrant, State of Texas, consisting primarily of
a shopping center sometimes known as the "North Hills Mall" (the
"Property"). The Original Agreement was subsequently amended by (i) that
certain First Amendment To Purchase Agreement ("First Amendment") made and
entered into as of the 29th day of June, 1999, and (ii) that certain
Second Amendment To Purchase Agreement ("Second Amendment") made and
entered into as of the 30th day of July, 1999, both by and among Seller and
Buyer. The Original Agreement as amended by the First Amendment and Second
Amendment is hereinafter referred to as the "Agreement". The Agreement as
amended by this Third Amendment is hereinafter referred to as the "Amended
Agreement". Unless otherwise defined herein, capitalized terms have the
meanings defined in the Agreement.
B. The Kest Trust delivered to Seller a Termination Notice dated
August 3, 1999 (the "Termination Notice"), purporting to terminate the
Agreement.
C. Seller and Buyer wish to ratify, confirm, reaffirm, reinstate,
modify and amend the Agreement subject to and strictly in accordance with
the terms of this Third Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Buyer hereby
ratify, confirm, reaffirm, reinstate and amend the Agreement as follows:
1. Recitals. The recitals set forth above are not merely
recitals, but form an integral part of this Third Amendment.
2. Recession. Buyer and Seller agree that the Termination Notice
shall be deemed rescinded and of no force or effect. Accordingly, the
parties agree that Escrow Holder and Seller shall treat the Termination
Notice as if the same was never delivered.
3. Deposited Funds & Closing Date. Concurrently herewith Buyer
shall deposit with Escrow Holder FIVE HUNDRED THOUSAND DOLLARS ($500,000)
(which funds are hereby deemed to be the Deposited Funds) in immediately
available federal funds, which funds are NON-REFUNDABLE (subject only to
satisfaction of the conditions set forth in subparagraphs 4.C, 4.E and 4.F
of the Agreement). Provided that the Deposited Funds are delivered as set
forth above, the Closing Date, as defined in Paragraph 5 of the Agreement,
shall be extended to Tuesday, November 16, 1999, or such earlier date as
may be agreed upon by Buyer and Seller. In connection with the foregoing,
(i) Buyer shall have no further right to extend the Closing Date pursuant
to Paragraph 5 of the Agreement and (ii) the Deposited Funds may be
immediately released to Seller in accordance with Paragraph 5 of the
Agreement.
4. Buyer Contingencies. Buyer hereby approves and/or waives
satisfaction of all contingencies and conditions precedent to its
obligation to purchase the Property except for satisfaction of the
conditions set forth in subparagraphs 4.C, 4.E and 4.F of the Agreement.
Buyer hereby expressly acknowledges that the Due Diligence Period has
expired and Buyer (including, without limitation, the Kest Trust, Xxxxxxx
Xxxx as trustee) has no further right to terminate the Agreement pursuant
to subparagraph 4.B of the Agreement or otherwise. In this connection,
Buyer hereby acknowledges and agrees that Buyer shall be deemed to have
delivered Buyer's Approval Notice to Seller prior to the expiration of the
Due Diligence Period.
5. Form of REA Estoppel Certificate; Estoppel Certificates.
Exhibit "E-3" attached to the Agreement is hereby deleted and replaced in
its entirety with the Exhibit "E-3" attached hereto. Notwithstanding
anything to the contrary in the Agreement, (i) any estoppel certificate
delivered in connection with the Agreement that is dated on or after August
1, 1999 shall, for the purposes of subparagraphs 4.E and 4.F of the
Agreement, be deemed to have been dated and delivered less than 60 days
prior to the Closing Date and (ii) the conditions set forth in
subparagraphs 4.E and 4.F of the Agreement shall be deemed satisfied unless
there exists a change to the form of any estoppel certificate delivered in
connection with the Agreement which materially and adversely affects the
current operations and use of the Property, and, in connection with any REA
Estoppel, the condition set forth in subparagraph 4.F of the Agreement
shall be deemed satisfied if such estoppel states, regardless of the form
of such certificate, (a) that the REA is unmodified and in full force and
effect (or, if there are modifications, that the same is in full force and
effect as modified and stating the modifications), (b) the date to which
any charges payable under the REA have been paid in advance, if any, and
(c) whether or not to the knowledge of the signer of such certificate any
other party to the REA is in default in the performance of any covenant,
agreement or condition contained in the REA, and if so, specifying each
such default of which the signer may have knowledge.
6. Loan Assumption; Obligations Absolute. Buyer desires to assume
(whether or not consummated, the "Assumption"), at Buyer's sole cost and
expense (it being understood that Buyer is hereby obligated to pay
[directly or through Seller] all fees, costs and expenses associated with
the potential Assumption), the existing loan (the "Loan") and the related
financing documents encumbering and/or concerning the Property, and Seller
is willing to reasonably cooperate therewith, without liability, cost,
expense or other obligation, to the extent Seller deems, in its sole and
absolute discretion, that such cooperation is reasonably necessary in
attempting to consummate the Assumption. NOTWITHSTANDING ANYTHING TO THE
CONTRARY SET FORTH HEREIN OR IN THE AGREEMENT, BUYER SHALL REIMBURSE SELLER
IN IMMEDIATELY AVAILABLE FEDERAL FUNDS FOR ALL COSTS AND EXPENSES INCURRED
BY SELLER IN CONNECTION WITH OR RELATING TO THE ASSUMPTION (REGARDLESS IF
SUCH COSTS ARE INTERNALLY OR EXTERNALLY GENERATED) WITHIN TWO (2) BUSINESS
DAYS OF WRITTEN DEMAND FOR REIMBURSEMENT FROM SELLER TO XXXXXX X. XXXXX,
ESQ. (AS REPRESENTATIVE OF AND COUNSEL TO BUYER), WHICH DEMAND MAY BE MADE
BY FACSIMILE TRANSMISSION TO (000) 000-0000. FAILURE OF BUYER TO REIMBURSE
SELLER AS SET FORTH IN THIS PARAGRAPH 6 SHALL BE A MATERIAL BREACH OF THE
AMENDED AGREEMENT, AND UPON THE ELECTION OF SELLER, THE DEPOSITED FUNDS
SHALL BE DELIVERED TO (OR RETAINED BY) SELLER AS FULL COMPENSATION AND
LIQUIDATED DAMAGES UNDER AND IN CONNECTION WITH THE AMENDED AGREEMENT.
Buyer's obligations and agreements set forth herein and in the Agreement,
including, without limitation, Buyer's obligation to Purchase the Property
and to pay all cost and expense associated with the Assumption, shall be
absolute and shall not be affected if the Assumption does not in fact
occur, is not approved or is not otherwise consummated or if the Assumption
is rejected, at any time or in any fashion, by representatives of the
holder of the Loan or representatives of such holder's loan servicer. In
furtherance of the foregoing, Buyer and Seller acknowledge and agree that
the neither the consummation of the Assumption nor Buyer's obtainment of
other third party financing is a condition precedent to Buyer's obligation
to purchase the Property.
7. Time of the Essence. Buyer and Seller hereby reaffirm and
agree that time shall be of the essence in the Amended Agreement.
8. Ratification of Purchase Agreement. Buyer and Seller hereby
agree that except as expressly provided herein, the provisions of the
Agreement shall be, and remain, in full force and effect (such Agreement
being hereby ratified and confirmed by the parties hereto, notwithstanding
any prior termination thereof), and that if any provision of this
Third Amendment conflicts with the Agreement, then the provisions of this
Third Amendment shall prevail.
9. Miscellaneous. This Third Amendment may be executed in
counterparts and delivered by facsimile transmission.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this
Third Amendment effective as of the date first set forth above.
BUYER:
NORTH HILLS, LTD.,
a Texas limited partnership
By: XXXX XXXXXXX & CO., INC.,
a Texas corporation,
its general partner
By: _________________________
Name: _________________________
Title:_________________________
THE KEST CHILDREN'S TRUST
By: _________________________
Xxxxxxx Xxxx, Trustee
SELLER:
NORTH HILLS MALL ASSOCIATES,
an Illinois general partnership
By: JMB Income Properties, Ltd.-X,
an Illinois limited partnership
By: JMB Realty Corporation,
a Delaware corporation,
Its General Partner
By: _________________________
Name: _________________________
Title:_________________________
Exhibit "E-3"
FORM OF REA ESTOPPEL CERTIFICATE
REA ESTOPPEL CERTIFICATE
______________ __, 1999
VIA OVERNIGHT DELIVERY VIA TELECOPY (000) 000-0000
North Hills Mall Associates Pircher, Xxxxxxx & Xxxxx
c/o JMB Realty Corporation 1999 Avenue of the Stars, 26th Floor
000 Xxxxx Xxxxxxxx Xxxxxx Xxx Xxxxxxx, XX 00000
Xxxxxxx, Xxxxxxxx 00000 Attention: CSH (1-581)
Attention: Xx. Xxxxx Xxxxxxx
Re: Xxxxx Xxxxx Xxxx;
Xxxxx Xxxxxxxx Xxxxx, Xxxxx (the "Property")
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Ladies and Gentlemen:
The undersigned hereby certifies to you, your lender(s), any
prospective purchaser of all of part of your interest in the Property
(collectively, the "Relying Parties"), and each Relying Party's successors
and assigns that, except as listed on Schedule "A" attached hereto and made
a part hereof:
1. That certain "OPERATING AGREEMENT" dated July 11, 1978,
originally by and among Federated Stores Realty, Inc. (predecessor-in-
interest to North Hills Mall Associates, an Illinois general partnership),
Federated Department Stores, Inc. (predecessor-in-interest to Primary
Properties Corporation, a Delaware corporation a/k/a Xxxxx'x), R. E. Xxx &
Company (predecessor-in-interest to The Xxxxxx Company-Texas, a Nevada
corporation) and Xxxxx Street Realty Company, and recorded in Volume 6526
at Page 745 of the Deed Records of Tarrant County, Texas, as amended by (i)
that certain "Amendment to Operating Agreement" made as of the 9th day of
February, 1979 and recorded in Volume 6687 at Page 687 of the Deed Records
of Tarrant County, Texas, (ii) that certain "SECOND AMENDMENT TO OPERATING
AGREEMENT" made and entered into as of the 19th day of December, 1984 and
recorded in Volume 8051 at Page 402 and re-recorded and re-filed in Volume
8132 at Page 2036 of the Deed Records of Tarrant County, Texas, which,
among other matters, added Mervyn's, a California corporation, as an
additional party to the original Operating Agreement and (iii) that certain
"THIRD AMENDMENT TO OPERATING AGREEMENT" made as of the September 13, 1994
and recorded in Volume 11802 at Page 781 of the Deed Records of Tarrant
County, Texas (collectively and together with the related agreements
identified on Exhibit "A" attached hereto, the "REA") constitute the only
agreements or understandings between North Hills Mall Associates, an
Illinois general partnership, and the undersigned with respect to the
matters contained therein, and the REA has not been modified, changed,
altered or amended in any respect, except as described in this Paragraph 1.
2. The REA is in full force and effect and constitutes a legally
valid instrument, binding and enforceable against the undersigned in
accordance with its terms.
3. To the best knowledge of the undersigned, no other party
subject to the REA is in default in any manner in the performance of any of
the terms, covenants, conditions or provisions of the REA.
4. The undersigned has not made advance payment of any charges
payable under the REA.
The individual executing this certificate on behalf of the
undersigned has been duly authorized to make the statements herein
contained and to execute and deliver this certificate.
The undersigned agrees that this letter shall inure to the benefit of
and is being relied upon by the Relying Parties and each Relying Party's
successors and assigns.
Very truly yours,
_________________________________,
a ________________________________
By: __________________________
Name: __________________________
Title:__________________________
SCHEDULE "A"
Exceptions to REA Estoppel Certificate
EXHIBIT "A"
Supplemental Agreement to Operating Agreement dated December 19, 1984 by
and between JMB Income Properties, Ltd.-X, The Xxxxxx Company and Xxxxx
Street Realty Company.
Supplemental Agreement to Operating Agreement dated December 19, 1984 by
and between JMB Income Properties, Ltd.-X and Mervyn's.
