EXHIBIT 10.5
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AGREEMENT AND
FOURTH AMENDMENT TO PURCHASE AGREEMENT
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(Xxxxx Xxxxx Xxxx; Xxxxx Xxxxxxxx Xxxxx, Xxxxx)
This Agreement and Fourth Amendment To Purchase Agreement
("Fourth Amendment") is made and entered into as of the 16th day of
November, 1999, by and among NORTH HILLS MALL ASSOCIATES, an Illinois
general partnership ("Seller") NORTH HILLS CREEK MALL, L.P., a Texas
limited partnership ("Buyer"), NORTH HILLS, LTD., a Texas limited
partnership ("NHL"), THE KEST CHILDREN'S TRUST (the "Kest Trust", NHL and
the Kest Trust are hereinafter individually and collectively called
"Assignor"), XXXX XXXXXXX, an individual and XXXXXX X. XXXXX, an
individual, with reference to the following facts:
A. Seller and Assignor 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
Assignor 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, by and among Seller and
Assignor; (ii) that certain Second Amendment To Purchase Agreement
("Second Amendment") made and entered into as of the 30th day of July,
1999, by and among Seller and Assignor, and (iii) that certain Third
Amendment To Purchase Agreement ("Third Amendment") made and entered into
as of the 11th day of August, 1999, by and among Seller and Assignor. The
Original Agreement as amended by the First Amendment, Second Amendment and
Third Amendment is hereinafter referred to as the "Agreement". The
Agreement as amended by this Fourth Amendment is hereinafter referred to as
the "Amended Agreement". Unless otherwise defined herein, capitalized
terms have the meanings defined in the Agreement.
B. Assignor subsequently assigned, and Buyer assumed, all of
Assignor's rights and obligations as "Buyer" under the Agreement.
C. The undersigned parties wish to agree and ratify, confirm,
modify and amend the Agreement subject to and strictly in accordance with
the terms of this Fourth Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Buyer and Seller hereby
ratify, confirm, reaffirm and amend the Agreement and the undersigned
parties agree as follows:
1. Recitals. The recitals set forth above are not merely
recitals, but form an integral part of this Fourth Amendment.
2. Assignment / Reaffirmation of Assignment. To the extent not
previously accomplished, (i) Assignor hereby assigns to Buyer all of
Assignor's right, title and interest in and to the Agreement in order to
confer upon Buyer all of the benefits of a successor, assign or nominee of
Assignor under the Agreement, and Assignor acknowledges that this
assignment shall not release Assignor from any liability or obligation as
"Buyer" under the Agreement (as hereby amended) and (ii) Buyer hereby
accepts assignment of the Agreement as aforesaid and assumes all of
Assignor's obligations under the Agreement.
3. Escrow Holder. Escrow Holder, as originally defined in
Paragraph 3.A of the Agreement, shall be Chicago Title Company located at
000 Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx XX 00000, Attn.: Xxxxx Xxxxxxx,
Escrow No. 91005609-X40, Phone: (000) 000-0000, FAX: (000) 000-0000.
4. Closing Date. The Closing Date, as originally defined in
Paragraph 5 of the Agreement, shall be extended to Friday, November 19,
1999, or such earlier date as may be agreed upon by Buyer and Seller.
5. Buyer Contingencies. Buyer and Assignor hereby acknowledge and
agree that all contingencies and conditions precedent to its obligation to
purchase the Property (other than delivery of Seller's closing documents
into escrow) have been satisfied or are hereby expressly waived.
6. Buyer Representations and Warranties. Buyer hereby represents
and warrants to Seller, as of the date hereof and as of the Closing Date,
that this Fourth Amendment and all agreements, instruments and documents
provided in the Amended Agreement to be executed or to be caused to be
executed by Buyer are and on the Closing Date will be duly authorized,
executed and delivered by and are binding upon Buyer; Buyer is a limited
partnership, duly organized and validly existing and in good standing under
the laws of the State of Texas, and is duly authorized and qualified to do
all things required of it under this Fourth Amendment and the Amended
Agreement; and Buyer has the capacity and authority to enter into this
Fourth Amendment and the Amended Agreement and consummate the transactions
provided in the Amended Agreement without the consent or joinder of any
other party. The foregoing representations and warranties of Buyer shall
survive the Closing and the delivery and recordation of the Deed.
7. Buyer Indemnity. Xxxx Xxxxxxx, Xxxxxx X. Xxxxx and Buyer
(collectively, the "Indemnitors") jointly and severally agree to indemnify,
defend, protect, save and hold harmless Seller and its successors, assigns
and affiliates in accordance with the terms and conditions set forth on the
Indemnity Agreement attached hereto as Exhibit "A", and the Indemnitors
agree to execute and deliver to Seller at Closing such Indemnity Agreement
(such execution and delivery being a condition precedent to Seller's
obligation to close under the Agreement). The obligations of the
Indemnitors set forth in this Paragraph 7 shall survive the Closing and the
delivery and recordation of the Deed.
8. Tax Impound. Buyer and Seller have been informed by the
current holder (the "Holder") of the Loan that, as of November 5, 1999, the
balance of the tax impound account (the "Impound Account") being held
pursuant to the Loan was $796,245.48. Based upon such figure, the Holder
has indicated that it will retain in the Impound Account approximately
$286,811.87 for payment of the 1999 real estate taxes on the Property and
refund approximately $509,433.61 at Closing through escrow. Seller shall
receive a proration credit at Closing in the amount of the Impound Account
(prior to refund), and all real estate (and business property) taxes shall
be prorated between Buyer and Seller in accordance with the Agreement and
based upon the actual tax bills for the 1999 tax year attached hereto as
Exhibit "B". By executing this Fourth Amendment, Buyer and Seller hereby
instruct Holder to pay upon the Closing the real estate taxes on the
Property in accordance with the appropriate tax xxxx attached hereto as
Exhibit "B". Seller and Buyer have determined the total amount of refunds
owed (and that will be owed) to Property tenants pursuant to their
respective excess real estate tax contributions for the 1999 tax year and
all prior periods is $45,010.79, and Buyer shall receive a proration credit
at Closing (in full satisfaction and release of Seller [as Seller, landlord
or otherwise], and Buyer hereby assumes all of Seller's obligations, with
respect to such real estate tax contributions) equal to $39,831.47 (based
on a November 19, 1999 Closing) for the purpose of making reimbursements to
Property tenants for excess real estate tax contributions attributable to
Seller's period of Property ownership.
9. Assumption Reaffirmation and Agreement. Buyer and Assignor
hereby (i) expressly reaffirm their agreement to reimburse Seller in
immediately available federal funds for all costs and expenses incurred by
Seller in connection with or relating to the Assumption, as such obligation
is set forth in Paragraph 6 of the Third Amendment, (ii) agree to pay all
such outstanding amounts at Closing through escrow and (iii) agree that all
such amounts shall be due and owing upon demand by Seller regardless if and
when the Closing occurs.
10. Assignment of Right of First Refusal. The Assignment and
Assumption Agreement shall be deemed to include, to the extent assignable
without the consent of any third party and without representation,
warranty, guaranty or liability of any kind or nature, Seller's right,
title and interest, if any, in and to that certain right of first refusal
granted under that certain letter agreement dated October 19, 1983 from
Federated Stores Realty, Inc. and Federated Department Stores, Inc.
(collectively, "Federated") to (and accepted and agreed to by) JMB Realty
Corporation ("JMB"), as amended by that certain letter agreement dated
December 7, 1984 from Federated to (and accepted and agreed to by) JMB.
The foregoing assignment shall be effective upon the Closing, if and when
the same occurs.
11. Stub Property. Upon the Closing, Seller shall cause JMB Income
Properties, Ltd.-X to deed to Buyer that certain real property with a
parcel address of 0000 Xxxxxxxxx Xxxxxxx in the City of North Richland
Hills, County of Tarrant, State of Texas consisting of approximately 1.05
acres, in the form of Exhibit "C" attached hereto.
12. Buyer Proration Credit. Buyer shall receive a non-refundable
proration credit at Closing equal to $112,000 subject to and in
consideration for Buyer's funding of $425,000 into a new impound account in
connection with the Loan and the Assumption.
13. Time of the Essence. Buyer and Seller hereby reaffirm and
agree that time shall be of the essence in the Amended Agreement.
14. 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), and that if any
provision of this Fourth Amendment conflicts with the Agreement, then the
provisions of this Fourth Amendment shall prevail.
15. Miscellaneous. This Fourth Amendment may be executed in
counterparts and delivered by facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have executed this
Fourth Amendment effective as of the date first set forth above.
BUYER:
NORTH HILLS CREEK MALL, L.P.,
a Texas limited partnership
By: Fountain Mall, Inc.,
a Texas corporation, its general partner
By: ________________________________________
Xxxx Xxxxxxx,
Its President and Authorized Signatory
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: ________________________
[SIGNATURES CONTINUE ON NEXT PAGE]
ASSIGNOR:
NORTH HILLS, LTD.,
a Texas limited partnership
By: XXXX XXXXXXX & CO., INC.,
a Texas corporation, its general partner
By: _________________________
Name: _________________________
Title: ________________________
By: THE KEST CHILDREN'S TRUST
By: _________________________
Xxxxxxx Xxxx, Trustee
INDEMNITORS:
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Xxxx Xxxxxxx, an individual
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Xxxxxx X. Xxxxx, an individual
EXHIBIT "A"
FORM OF
INDEMNITY AGREEMENT
EXHIBIT "B"
1999 Tax Bills
[See Attached]
EXHIBIT "C"
FORM OF DEED
DEED WITHOUT WARRANTY
STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS
COUNTY OF TARRANT
JMB INCOME PROPERTIES, LTD.-X, an Illinois limited partnership
("Grantor"), for and in consideration of the sum of TEN AND NO/100 DOLLARS
($10.00) TEN DOLLARS, and other good and valuable consideration paid by
NORTH HILLS CREEK MALL, L.P., a Texas limited partnership ("Grantee"), the
receipt and sufficiency of which are hereby acknowledged and confessed,
subject to the exceptions, liens, encumbrances, terms and provisions
hereinafter set forth and described, has GRANTED, BARGAINED, SOLD and
CONVEYED, and by these presents does hereby GRANT, BARGAIN, SELL and
CONVEY, unto Grantee all of that certain lot, tract or parcel of land
situated in the City of North Richland Hills, Tarrant County, Texas, and
being more particularly described in Exhibit "A" attached hereto and
incorporated herein by reference, together with all improvements located on
such land (such land and improvements being collectively referred to as the
"Property").
This conveyance is made by Grantor and accepted by Grantee subject to
all covenants, conditions, easements, encumbrances and all other matters of
record and all other matters that can be determined by a visual inspection
or a complete and accurate survey of the Property (the "Permitted
Exceptions").
TO HAVE AND TO HOLD the Property, subject to the Permitted
Exceptions, unto Grantee, and its successors and assigns forever, without
express or implied warranty; and all warranties that might arise by common
law and the warranties in Sec 5.023 of the Texas Property Code (or its
successor) are excluded.
GRANTEE ACKNOWLEDGES THAT THE CONVEYANCE OF THE PROPERTY IS
SPECIFICALLY MADE "AS-IS" AND "WHERE-IS," WITHOUT ANY REPRESENTATIONS OR
WARRANTIES EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED
WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY OR ANY
OTHER WARRANTIES WHATSOEVER CONTAINED IN OR CREATED BY THE UNIFORM
COMMERCIAL CODE OR OTHERWISE.
EXECUTED on November ___, 1999.
GRANTOR:
JMB Income Properties, Ltd.-X,
an Illinois limited partnership
By: JMB Realty Corporation,
a Delaware corporation, Its General Partner
By: _________________________
Name: _________________________
Title: ________________________
STATE OF ILLINOIS )
) S.S.
COUNTY OF XXXX )
On ____________________, before me, ____________________, a Notary
Public in and for said County and State, personally appeared __________,
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her
authorized capacity and that by his/her signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Signature:
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My commission expires:
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SPACE FOR NOTARY SEAL OR STAMP
EXHIBIT "A"
LEGAL DESCRIPTION
[See Attached]
EXHIBIT "A"
FORM OF
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (this "Indemnity") is entered into as of
November ___, 1999, by XXXX XXXXXXX, individually ("Xxxxxxx "), XXXXXX X.
XXXXX, individually ("Xxxxx "), and NORTH HILLS CREEK MALL, L.P., a Texas
limited partnership ("NHCM"; together with Xxxxxxx and Xxxxx,
"Indemnitor"), in favor of NORTH HILLS MALL ASSOCIATES, an Illinois general
partnership ("Associates").
R E C I T A L S
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A. Associates is the owner of certain improved real property 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").
B. Associates and 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 "Assignor")
entered into that certain "Purchase Agreement" (the "Original Agreement")
dated as of the 22nd day of June, 1999, pursuant to which Associates agreed
to sell, and Assignor agreed to buy, 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, by and among Associates and Assignor; (ii) that certain
Second Amendment To Purchase Agreement ("Second Amendment") made and
entered into as of the 30th day of July, 1999, by and among Associates and
Assignor; (iii) that certain Third Amendment To Purchase Agreement
("Third Amendment") (iv) that certain Agreement and Fourth Amendment To
Purchase Agreement ("Fourth Amendment") made and entered into as of the
16th day of November, 1999, by and among Associates and NHCM (as successor-
in-interest to Assignor pursuant to an assignment agreement whereby
Assignor assigned, and Buyer assumed, all of Assignor's rights and
obligations as "Buyer" under the Original Agreement, as then amended). The
Original Agreement as amended by the First Amendment, Second Amendment,
Third Amendment and Fourth Amendment is hereinafter referred to as the
"Agreement".
C. As a condition to and in consideration for Associates entering
into the Fourth Amendment (and for other good and valuable consideration),
Associates has required and Indemnitor has agreed (i) to indemnify
Associates against all cost, expense, liability and loss relating to or
arising from the continued existence and NHCM's assumption of the existing
loan (the "Loan") made to Associates now held by LaSalle Bank National
Association, as Trustee for the Registered Holders of Chase Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates
Series 1996-1 and the related financing documents encumbering and/or
concerning the Property, including, without limitation, all documents
executed by Associates in connection with the Loan and NHCM's assumption of
thereof, (ii) to indemnify Associates against all cost, expense, liability
and loss relating to or arising from Property tenants' real estate tax
obligations and (iii) to execute and deliver this Indemnity to Associates
on the "Closing Date" (as hereinafter defined).
D. Indemnitor, either directly or through its affiliates, has a
financial interest in the Agreement, the transaction governed by the
Agreement and the potential acquisition of the Property, and it is in
Indemnitor's interest for Associates to enter into the Fourth Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Indemnitor agrees as follows:
1. Definitions. As used in this Indemnity, the following terms
shall have the meanings attributed to them below:
A. "Closing Date" means the "Closing Date" set forth in the
Agreement.
B. "Claim" means any claim, demand, liability, loss, duty,
obligation, offset, lien, right or cause of action of any nature (whether
or not known, anticipated or suspected by Indemnitor or capable of being
known, anticipated or suspected by Indemnitor) made, incurred, threatened,
instituted or brought at any time after the Closing Date (and before the
Closing Date to the extent relating to the Loan assumption negotiation,
documentation, diligence and approval process), directly or indirectly and
in any manner or forum, by reason of or in connection with NHCM's
assumption of the Loan, the Loan (to the extent Associates would have been
released from or would have a good faith defense against the same if the
Loan had been satisfied and paid in full on the Closing Date), any document
executed by Associates in connection with NHCM's assumption of the Loan,
the real and/or personal property now or hereafter encumbered pursuant to
the Loan (to the extent Associates would have been released from or would
have a good faith defense against the same if the Loan had been satisfied
and paid in full on the Closing Date), or the reimbursement of or payment
by Property tenants with respect to their respective real estate (and
business property) tax obligations.
C. "Claimant" means any person or entity that makes,
threatens, institutes or brings any Claim against any Indemnified Party or
that demands payment of any Costs from any Indemnified Party or to whom any
Indemnified Party becomes obligated to pay any Costs.
D. "Costs" means any and all damages, losses, fines,
penalties, awards, assessments, charges, fees, costs and expenses of any
nature suffered or incurred by any person as a result of or in connection
with any Claim, including, without limitation, (i) compliance, legal,
investigative, preventive, planning, and related costs, (ii) costs relating
to any judicial, administrative, arbitration or mediation action, suit,
hearing or proceeding, including court costs, filing fees, charges for
transcripts, arbitrators' or mediators' fees and witness fees, (iii) the
fees and disbursements of outside legal counsel and accountants and the
reasonable charges of in-house counsel and accountants, and (iv) all fees
and expenses incurred by Associates in connection with and relating to the
Loan assumption.
E. "Indemnified Parties" means Associates and its successors
and assigns, the directors, officers, employees, partners, members,
shareholders and agents of Associates and such assignees and successors,
and their respective heirs, executors, administrators, legal
representatives, successors and assigns.
2. Indemnity. From and after the Closing Date, and subject to the
occurrence of the Closing Date, Indemnitor agrees to indemnify, defend
(with counsel satisfactory to each affected Indemnified Party), protect,
save and hold harmless the Indemnified Parties from and against any and all
Claims and Costs suffered or incurred by any of the Indemnified Parties at
any time on or after the Closing Date (and before the Closing Date to the
extent relating to the Loan assumption negotiation, documentation,
diligence and approval process), except to the extent such Claims and Costs
are the result of fraud by any Indemnified Party.
A. Obligation to Advance or Reimburse Costs. Within five
business days after Indemnitor's receipt from any Indemnified Party of any
demand that Indemnitor pay or reimburse such Indemnified Party for having
paid any Costs, and provided that such demand is accompanied by bills,
invoices, receipts or other documentation reasonably establishing the
amount and nature of such Costs, Indemnitor shall pay the full amount of
such Costs that such Indemnified Party has not yet paid (with such payment
to be made either to the Indemnified Party or directly to the Claimant, as
directed in the Indemnified Party's demand) and shall reimburse such
Indemnified Party for the full amount of Costs that the Indemnified Party
already has paid. Without in any way implying that Indemnitor's strict
compliance with the foregoing payment obligation is not required, any such
payment or portion thereof that Indemnitor fails to pay within five
business days after Indemnitor's receipt of any Indemnified Party's demand
for such payment shall bear interest from the date of Indemnitor's receipt
of the demand at the lesser of 18% per annum or the maximum rate allowed by
law.
B. Participation by Indemnified Parties. All Indemnified
Parties affected by any Claim shall have the right to participate, with
counsel of their choice, in the defense of such Claim. Indemnitor shall
not settle or compromise any Claim without first obtaining written approval
of the proposed settlement or compromise from all affected Indemnified
Parties.
C. Obligations Cumulative. Indemnitor's obligations under
this Indemnity shall be in addition to any other obligations or liability
that Indemnitor may have to the Indemnified Parties at law or in equity,
including any obligation of contribution or compensation under the
Agreement.
3. Assignment. This Indemnity shall inure to the benefit of, and
be binding upon and enforceable by, the parties to this Indemnity and their
respective successors and assigns and each other Indemnified Party;
provided, however, that Indemnitor shall not delegate any of its
obligations or liabilities under this Indemnity without the prior written
consent of Associates, which may be granted or withheld in the sole
discretion of Associates. Any such delegation shall not relieve Indemnitor
of liability for the due performance of the delegated obligations.
4. Severability. In the event any clause, sentence, term,
condition or provision of this Indemnity shall be held by any court of
competent jurisdiction to be illegal, invalid or unenforceable for any
reason, the remaining portions of this Indemnity shall nonetheless remain
in full force and effect.
5. Modifications. This Indemnity cannot be changed, modified or
supplemented except in a writing signed by the party against whom
enforcement of such change, modification or supplement is sought.
6. Applicable Law. This Indemnity shall be governed by and
construed and enforced under the laws of the State of Texas (without regard
to conflicts of law), except where federal law is applicable (including,
without limitation, any applicable federal law preempting state laws).
7. Counterparts. This Indemnity may be executed in one or more
counterparts or duplicate originals, each of which shall be deemed an
original, but all of which together shall constitute but one and the same
instrument.
8. Attorneys' Fees. In the event any litigation is instituted by
Indemnitor or any Indemnified Party to enforce or construe any provision of
this Indemnity, the prevailing party shall be entitled to have and recover
from the other party all attorneys' fees, witness fees, court costs and
other litigation expenses incurred by the prevailing party, as determined
by the court (including, if an Indemnified Party is the prevailing party,
all attorneys' fees, court costs and other expenses incurred by such
Indemnified Party in connection with any insolvency, bankruptcy,
reorganization, arrangement or other similar proceeding involving
Indemnitor that in any way affects the exercise by such Indemnified Party
of its rights and remedies under this Indemnity).
9. Waiver. The failure by any party hereto to enforce any term or
provision of this Indemnity shall not constitute a waiver of the right to
enforce the same term or provision, or any other term or provision,
thereafter. No waiver by any party of any term or provision of this
Indemnity shall be deemed or shall constitute a waiver of any other
provisions (whether or not similar), nor shall such waiver constitute a
continuing waiver unless otherwise expressly provided in writing.
10. Additional Waivers. Indemnitor acknowledges that, if
Indemnitor is comprised of more than one person or entity (individually, a
"Indemnitor Party" and collectively, the Indemnitor Parties"), none of the
Indemnitor Parties constitutes a guarantor because each of such parties is
fully responsible for the obligations under this Indemnity, subject to the
limitations of liability expressly set forth herein (and each of such
parties hereby waives to the extent permitted by law any claim to the
contrary). In addition, and without limitation on the foregoing waiver or
any other waivers contained in this Indemnity:
(A) Obligation Absolute. Each Indemnitor Party hereby
unconditionally waives to the extent permitted by law any defense to the
enforcement of this Indemnity based on the characterization of any such
Indemnitor Party as a guarantor and without limitation:
(1) The obligations of such Indemnitor Party hereunder
shall remain in full force and effect without regard to, and shall not be
affected or impaired by the following, any of which may be taken without
the consent of, or notice to, such Indemnitor Party, nor shall any of the
following give such Indemnitor Party any recourse or right of action
against Associates:
(a) Any express or implied amendment,
modification, renewal, addition, or supplement to this Indemnity or the
Agreement;
(b) Any exercise or non-exercise by Associates of
any right or privilege under this Indemnity or the Agreement;
(c) Any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other like proceeding
relating to such Indemnitor Party or any other Indemnitor Party, or any
guarantor (which term shall include any other party at any time directly or
contingently liable for any of Indemnitor's obligations under this
Indemnity) or any affiliate of any Indemnitor Party, or any action taken
with respect to this Indemnity by any trustee or receiver, or by any court,
in any such proceeding, whether or not such Indemnitor Party shall have had
notice or knowledge of any of the foregoing;
(d) Any release or discharge of any other
Indemnitor Party from its liability under this Indemnity or any release or
discharge of any endorser or guarantor or of any other party at any time
directly or contingently liable for the obligations secured by this
Indemnity;
(e) Any assignment or other transfer of this
Indemnity; and
(f) Any acceptance of partial performance of the
obligations.
B. Waivers. Each Indemnitor Party unconditionally waives to
the extent permitted by law any defense to the enforcement of this
Indemnity, including:
(1) All presentments, demands for performance, notices
of nonperformance, protests, notices of protest, notices of dishonor, and
notices of acceptance of this Indemnity;
(2) Any right to require Associates to proceed against
any other Indemnitor Party or any guarantor at any time or to proceed
against or exhaust any security held by Associates at any time or to pursue
any other remedy whatsoever at any time;
(3) The defense of any statute of limitations affecting
the liability of such Indemnitor Party hereunder, the liability of any
other Indemnitor Party or any guarantor under this Indemnity, or the
enforcement hereof, to the extent permitted by law;
(4) Any defense arising by reason of any invalidity or
unenforceability of (or any limitation of liability in) this Indemnity or
any disability of any Indemnitor Party or any guarantor or of any manner in
which Associates has exercised its rights and remedies under this
Indemnity, or by any cessation from any cause whatsoever of the liability
of any Indemnitor Party or any guarantor;
(5) Without limitation on clause (4) above, any defense
based upon any lack of authority of the officers, directors, partners or
agents acting or purporting to act on behalf of any Indemnitor Party or any
principal of any Indemnitor Party or any defect in the formation of any
Indemnitor Party or any principal of any Indemnitor Party;
(6) [Intentionally Deleted];
(7) Any defense based upon an election of remedies by
Associates, or any election of remedies, which destroys or otherwise
impairs the subrogation rights of such Indemnitor Party or the rights of
such Indemnitor Party to proceed against any other Indemnitor Party or any
guarantor for reimbursement, or both;
(8) Any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither larger in
amount nor in any other aspects more burdensome than that of a principal;
(9) Any defense based upon Associates' election, in any
proceeding instituted under the Federal Bankruptcy Code, of the application
of Section 1111(b)(2) of the Federal Bankruptcy Code or any successor
statute;
(10) Any defense based upon any borrowing or any grant
of a security interest under Section 364 of the Federal Bankruptcy Code;
(11) Any duty of Associates to advise such Indemnitor
Party of any information known to Associates regarding the financial
condition of any other Indemnitor Party and all other circumstances
affecting any other Indemnitor Party's ability to perform its obligations
to Associates, it being agreed that such Indemnitor Party assumes the
responsibility for being and keeping informed regarding such condition or
any such circumstances; and
(12) Any right of subrogation, reimbursement,
exoneration, contribution or indemnity, or any right to enforce any remedy
which Associates now has or may hereafter have against any other Indemnitor
Party or any benefit of, or any right to participate in, any security now
or hereafter held by Associates.
C. Subrogation. Each Indemnitor Party understands that the
exercise by Associates of certain rights and remedies may affect or
eliminate such Indemnitor Party's right of subrogation against any other
Indemnitor Party or any guarantor and that such Indemnitor Party may
therefore incur partially or totally nonreimbursable liability hereunder.
Nevertheless, each Indemnitor Party hereby authorizes and empowers
Associates, its successors, endorsees and assigns, to exercise in its or
their sole discretion, any rights and remedies, or any combination thereof,
which may then be available, it being the purpose and intent of such
Indemnitor Party that the obligations hereunder shall be absolute,
continuing, independent and unconditional under any and all circumstances.
Notwithstanding any other provision of this Indemnity to the contrary, so
long as any indebtedness secured by this Indemnity remains outstanding each
Indemnitor Party hereby waives and releases any claim or other rights which
such Indemnitor Party may now have or hereafter acquire against any other
Indemnitor Party or any guarantor of all or any of the obligations of such
Indemnitor Party hereunder that arise from the existence or performance of
such Indemnitor Party's obligations under this Indemnity, including any
right of subrogation, reimbursement, exoneration, contribution or
indemnification, any right to participate in any claim or remedy of
Associates against any other Indemnitor Party or any collateral which
Associates now has or hereafter acquires, whether or not such claim, remedy
or right arises in equity or under contract, statute or common law, by any
payment made hereunder or otherwise, including, without limitation, the
right to take or receive from any other Indemnitor Party, directly or
indirectly, in cash or other property or by setoff or in any other manner,
payment or security on account of such claim or other rights.
D. [Intentionally Deleted].
E. Independent Obligations. The obligation of such
Indemnitor Party hereunder is independent of the obligation of any other
Indemnitor Party and, in the event of any default hereunder, a separate
action or actions may be brought and prosecuted against such Indemnitor
Party whether or not such Indemnitor Party is the alter ego of any other
Indemnitor Party and whether or not any other Indemnitor Party is joined
therein or a separate action or actions are brought against any other
Indemnitor Party. Associates's rights hereunder shall not be exhausted
until all of the obligations secured by this Indemnity have been fully paid
and performed.
F. Subordination. Without limitation on the waiver and
release contained in subsection C above and to the extent permitted by law
and so long as any indebtedness secured by this Indemnity remains
outstanding:
(1) Each Indemnitor Party subordinates all present and
future indebtedness owing by any other Indemnitor Party to such Indemnitor
Party to the obligations at any time owing by any other Indemnitor Party to
Associates. Each Indemnitor Party assigns all such indebtedness to
Associates as security for this Indemnity.
(2) Each Indemnitor Party agrees to make no claim on
such indebtedness until all obligations of any other Indemnitor Party under
this Indemnity have been fully discharged.
(3) Each Indemnitor Party further agrees not to assign
all or any part of such indebtedness unless Associates is given prior
notice and such assignment is expressly made subject to the terms of this
Indemnity. If Associates so requests, (i) all instruments evidencing such
indebtedness shall be duly endorsed and delivered to Associates, (ii) all
security for such indebtedness shall be duly assigned and delivered to
Associates, (iii) such indebtedness shall be enforced, collected and held
by such Indemnitor Party as trustee for Associates and shall be paid over
to Associates, and (iv) such Indemnitor Party shall execute, file and
record such documents and instruments and take such other action as
Associates deems necessary or appropriate to perfect, preserve and enforce
Associates's rights in and to such indebtedness and any security therefor.
If such Indemnitor Party fails to take any such action, Associates, as
attorney-in-fact for such Indemnitor Party, is hereby authorized to do so
in the name of such Indemnitor Party. The foregoing power of attorney is
coupled with an interest and cannot be revoked.
G. Bankruptcy No Discharge; Repayments. So long as
any of the obligations guaranteed hereunder shall be owing to Associates,
no Indemnitor Party shall, without the prior written consent of Associates,
commence or join with any other party in commencing any bankruptcy,
reorganization or insolvency proceedings of or against any other Indemnitor
Party. Each Indemnitor Party understands and acknowledges that by virtue
of this Indemnity, it has specifically assumed any and all risks of a
bankruptcy or reorganization case or proceeding with respect to any other
Indemnitor Party. As an example and not in any way of limitation, a
subsequent modification of the obligations secured by this Indemnity in any
reorganization case concerning any other Indemnitor Party shall not affect
the obligation of each such Indemnitor Party to pay and perform the
obligations secured by this Indemnity in accordance with its original
terms. In any bankruptcy or other proceeding in which the filing of claims
is required by law, each Indemnitor Party shall file all claims which such
Indemnitor Party may have against any other Indemnitor Party relating to
any indebtedness of any other Indemnitor Party to such Indemnitor Party and
shall assign to Associates all rights of such Indemnitor Party thereunder.
If any Indemnitor Party does not file any such claim, Associates, as
attorney-in-fact for such Indemnitor Party, is hereby authorized to do so
in the name of such Indemnitor Party or, in Associates's discretion, to
assign the claim to a nominee and to cause proof of claim to be filed in
the name of Associates's nominee. The foregoing power of attorney is
coupled with an interest and cannot be revoked. Associates or its nominee
shall have the right, in its reasonable discretion, to accept or reject any
plan proposed in such proceeding and to take any other action which a party
filing a claim is entitled to do. In all such cases, whether in
administration, bankruptcy or otherwise, the person or persons authorized
to pay such claim shall pay to Associates the amount payable on such claim
and, to the full extent necessary for that purpose, each Indemnitor Party
hereby assigns to Associates all of such Indemnitor Party's rights to any
such payments or distributions; provided, however, such Indemnitor Party's
obligations hereunder shall not be satisfied except to the extent that
Associates receives cash by reason of any such payment or distribution. If
Associates receives anything hereunder other than cash, the same shall be
held as collateral for amounts due under this Indemnity. Notwithstanding
anything to the contrary herein, the liability of each Indemnitor Party
hereunder shall be reinstated and revised, and the rights of Associates
shall continue, with respect to any amount at any time paid by or on behalf
of any Indemnitor Party on account of this Indemnity which Associates shall
restore or return by reason of the bankruptcy, insolvency or reorganization
of any Indemnitor Party or for any other reasons, all as though such amount
had not been paid.
11. Successive Actions; Remedies Cumulative. Each occurrence of a
Claim shall give rise to a separate cause of action under this Indemnity,
which may be enforced by each affected Indemnified Party from time to time
in a single action or in a series of actions, and the obligations of
Indemnitor under this Indemnity shall continue for as long as any
Indemnified Party may be subject to any Claim. The rights and remedies of
the Indemnified Parties under this Indemnity shall be cumulative with any
and all other rights and remedies available to the Indemnified Parties in
equity or at law.
12. Notices. Whenever Indemnitor or Associates shall desire to
give or serve any notice, demand, request or other communication with
respect to this Indemnity ("Notice"), each such Notice shall be in writing
and shall be personally served or sent by a commercial overnight delivery
service or by certified mail, return receipt requested, and shall be deemed
to have been received on the date actually received if personally served or
on the next business day after deposit with an overnight delivery service
or on the date of receipt or refusal as shown on the return receipt if sent
by certified mail. The addresses of the parties to which Notices shall be
sent (until notice of a change is served as provided in this Section) are
as follows:
Indemnitor: Associates:
Xxxxxxx: North Hills Mall Associates
c/o Law Offices of Xxxxxx X. Xxxxx c/o JMB Realty Corporation
0000 Xxxxxxxx Xxxx., Xxxxx 000 000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000 Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq. Attention: Xxxxx X. Xxxxxxx
Xxxxx & NHCM:
North Hills Creek Mall, L.P.
c/o Fountain Mall, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxx 00000
Attention: Xx. Xxxx Xxxxxxx
Notice of a change of address shall be given by 15 days' advance
written notice in the manner set forth in this Section.
13. Obligations Joint and Several. If Indemnitor consists of more
than one person or entity, each shall be jointly and severally liable under
this Indemnity.
14.Miscellaneous. This Indemnity may be executed in one or more
counterparts, each of which shall constitute an original, fully binding
agreement on the part of the executing party, and all of which taken
together shall constitute one agreement.
IN WITNESS WHEREOF, Indemnitor has caused this Indemnity to be
executed by its duly authorized representative as of the date first above
written.
INDEMNITOR:
NORTH HILLS CREEK MALL, L.P.,
a Texas limited partnership
By: Fountain Mall, Inc.,
a Texas corporation,
its general partner
By: ____________________
Xxxx Xxxxxxx,
Its President
and Authorized Signatory
--------------------------------
XXXX XXXXXXX, an individual
--------------------------------
XXXXXX X. XXXXX, an individual
