1
EXHIBIT 2.2
----------------------------------------------------------------------
TOWN EAST MALL
CONTRIBUTION AGREEMENT
----------------------------------------------------------------------
Seller: Atlantic Freeholds II,
a Nevada general partnership
and
TEM: Town East Mall, L.P.,
a Delaware limited partnership
Buyer: Town East Mall Partnership,
a Texas general partnership
June 10, 1997
2
----------------------------------------------------------------------
TOWN EAST MALL
CONTRIBUTION AGREEMENT
----------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
Recital of Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. CONTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2. ESCROW AND CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3. CONDITIONS AND INSPECTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4. CONDITIONS TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5. ADDITIONAL OBLIGATIONS OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6. OPERATION OF PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
7. TITLE AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8. ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
9. BROKERAGE COMMISSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11. CONDEMNATION AND DESTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
12. DEFINED TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
13. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
i
3
TABLE OF EXHIBITS
Page First
Mentioned
----------
Exhibit A - Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Exhibit B - (Intentionally Omitted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ?
Exhibit C - Rent Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Exhibit D - Personal Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Exhibit E - Service Contracts and Third Party Contracts . . . . . . . . . . . . . . . . . . . . . . 3
Exhibit F - Special Warranty Deed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Exhibit G - Assignment and Assumption of REA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Exhibit H - ▇▇▇▇ of Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Exhibit I - Assignment and Assumption of Leases . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Exhibit J - Security Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Exhibit K - Assignment and Assumption of Service Contracts 8
Exhibit L - Assignment of Intangible Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Exhibit M - Partnership Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Exhibit N - Management Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Exhibit O - FIRPTA Certificate 8
Exhibit P - Permitted Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Exhibit Q - Title Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Exhibit R - Pending Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Exhibit S - Schedule of Reports and Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Exhibit T - Schedules of Regulatory Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Exhibit U - Environmental Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Exhibit V - Asbestos Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Exhibit W - Pending Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Exhibit X - Opinion of Seller's Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Exhibit Y - Opinion TEM's Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Exhibit Z - Mortgage Estoppel and Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Exhibit AA - Pending Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ii
4
TOWN EAST MALL
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (the "Agreement") is made by and among
ATLANTIC FREEHOLDS II, a Nevada general partnership ("Seller") and TOWN EAST
MALL, L.P., a Delaware limited partnership ("TEM") and TOWN EAST MALL
PARTNERSHIP, a Texas general partnership ("Buyer").
Recital of Fact
I. The Mall
Town East Mall (the "Mall") is a fully-enclosed, two-level regional
shopping center containing a total of approximately 1,248,080 square feet of
improvements. The Mall is located on approximately 99 acres of land and is
located in Mesquite, Texas. A portion of the Mall and the real property on
which it is located are owned by four anchor retail stores commonly known as
"Sears", "▇.▇. Penney", "▇▇▇▇▇'▇" and "Dillard's" (jointly, the "Anchors", and
individually, an "Anchor"), who severally own a total of approximately 790,925
square feet of gross leasable area of the Mall and various parking lots on
approximately 64.9 acres. Seller is the owner of the remaining portion of the
Mall commonly known as the Mall Stores and Cinema (as hereinafter defined --
the "Improvements") composed of approximately 435,168 square feet of gross
leasable area and a parking lot area, which collectively are located on
approximately 34.5 acres of land, which is more particularly described on
Exhibit "A" attached hereto and incorporated herein by reference (such real
property together with all easements, rights, licenses, privileges
rights-of-way, mineral rights and royalties, hereditaments and any other real
property rights and interests appurtenant thereto, are hereinafter collectively
referred to as the "Real Property").
II. Encumbrances
The Real Property is encumbered by a first deed of trust ("First Deed
of Trust") executed by Homart Development Co. ("Homart") to ▇▇▇ ▇. ▇▇▇▇▇,
Trustee, dated December 8, 1971 and recorded in the Deed of Trust Records,
Dallas County, Texas to secure the payment of a promissory note (the "First
Note") dated
5
December 8, 1971 in the original principal amount of Fifteen Million Dollars
($15,000,000) payable to Connecticut General Life Insurance Company
("Mortgagee"); to further secure the First Note, Homart executed a Deed of
Trust and Mortgage dated September 23, 1982 to Trustee (the "Additional Deed of
Trust") and the First Deed of Trust was merged into and consolidated with the
Additional Deed of Trust by Consolidation and Modification Agreement by and
between Mortgagee and Homart dated September 23, 1982; the First Deed of Trust
was further modified by Modification of Deed of Trust by and between Mortgagee
and Atlantic Freeholds II dated March 28, 1987; and was further modified by
Agreement Supplementing Deed of Trust by and between Atlantic Freeholds II and
Mortgagee dated June 1, 1992.
The Real Property is encumbered by a second deed of trust ("Second
Deed of Trust") executed by Atlantic Freeholds II to ▇▇▇▇▇▇ ▇. See, Jr.,
Trustee, dated March 28, 1987 and recorded in the Deed of Trust Records, Dallas
County, Texas to secure the payment of a promissory note (the "Second Note")
dated March 28, 1987 in the original principal amount of Fifty-Six Million
Dollars ($56,000,000) payable to Mortgagee, as modified by Agreement
Supplementing Deed of Trust by and between Atlantic Freeholds II and Mortgagee
dated June 1, 1992.
III. Reciprocal Easement Agreement
The Mall and the parking areas owned by the Anchors and the Seller are
governed by that certain Construction, Operation and Reciprocal Easement
Agreement (the "REA") for the Mall dated January 11, 1971 and amended on
September 23, 1982 by that certain First Amendment to Reciprocal Easement
Agreement and by that certain Second Amendment to Construction, Operation, and
Reciprocal Easement Agreement dated June 1, 1992.
IV. Management
The Mall is managed by General Growth Management, Inc., an affiliate
of TEM ("Manager"). Prior to the management of the Mall by Manager, the mall
was managed by Homart Development Company ("Homart"). TEM acquired
substantially all of the regional mall business of Homart, including Homart's
management operations in the Mall, in 1995 and continued the employment of
certain key personnel of Homart in the management of the Mall
2
6
through its affiliate, the Manager. Accordingly, TEM through the current
management of the Mall by its affiliate and through the knowledge and
experience of its current employees is thoroughly familiar with the leasing,
operations and condition of the Mall and its improvements.
V. The Partnership
Seller and TEM are partners in Buyer under the terms of that certain
Partnership Agreement dated June 10, 1997 (the "Partnership Agreement"),
pursuant to which Buyer has been created as a general partnership under the
provisions of the Texas Uniform Partnership Act. Pursuant to the terms of this
Agreement, Seller and TEM intend to contribute to the capital of Buyer the
assets described in this Agreement.
VI. Property to be Transferred
The property to be conveyed hereunder includes all of Seller's right,
title and interest in:
A. The Real Property
B. All buildings, structures, fixtures, facilities,
installations, machinery, equipment and other improvements situated on the Real
Property (the "Improvements") and all easements, rights, titles and interests
appurtenant thereto;
C. All retail leases, license agreements and possession
agreements affecting the Real Property and Improvements together with any
additions, modifications or amendments thereof entered into in accordance with
the provisions of this Agreement (the "Leases"), which Leases are more
particularly described on Exhibit "C" attached hereto and incorporated herein
by reference (the "Rent Schedule");
D. All equipment, furniture and fixtures and other personal
property used in conjunction with the operation of the Real Property and
Improvements (other than equipment, furniture and fixtures owned by Tenants
under the Leases, the Anchors or the property manager, General Growth
Management, Inc.) including the items described on Exhibit "D" attached hereto
and incorporated herein by reference (the "Personal Property"),
3
7
subject to depletions, replacements or additions thereto in the ordinary course
of business of the Real Property and Improvements and any lease interest
therein;
E. The third party contracts or agreements pertaining to the Real
Property or Improvements, such as service or utility contracts, which are more
particularly described on Exhibit "E" attached hereto and incorporated herein
by reference (the "Service Contracts").
F. The interest of Seller in all intangible personal property
owned by Seller and used in the operation of the Real Property and the
Improvements, including (i) warranties, guaranties, indemnities and claims,
(ii) licenses, permits, or similar documents, (iii) telephone exchanges, trade
names, marks and other identifying material, including without limitation all
right, title and interest (if any) of Seller in and to the name "Town East
Mall," (iv) plans, drawings, specifications, surveys, engineering reports, and
other technical descriptions, (v) all records, books of account and papers of
Seller relating to the construction, ownership and operation of the Property,
including without limitation, architect's drawings, blue prints and as-built
plans, maintenance logs, copies of warranties and guaranties, licenses and
permits, instruction books, employee manuals, records and correspondence
relating to insurance claims, financial statements, operating budgets, paper
and electronic media copies of data and other information relating to the
Property available from personal computers, structural, mechanical,
geotechnical or other engineering studies, soil test reports, environmental
reports, underground storage tank reports, feasibility studies, appraisals, ADA
surveys or reports, OSHA asbestos surveys, marketing studies, mall documents
and compilations, lease summaries and originals and/or copies of Leases, the
REA and the Contracts and correspondence related thereto (collectively the
"Books and Records"), all of which together are sometimes hereinafter referred
to as the "Intangible Assets".
G. All right, title and interest of Seller under the REA
(Seller's "REA Interest").
Seller's right, title and interest in the Real Property, the
Improvements, the Leases, the Personal Property, the Service
4
8
Contracts, the Intangible Assets and Seller's REA Interest are hereinafter
collectively referred to as the "Property". The effective date of this
Agreement (the "Effective Date") shall be the date the second of Buyer or
Seller executes this Agreement and delivers the fully-executed Agreement to the
other party.
Seller desires to contribute and transfer the Property to the capital
of Buyer and TEM shall contribute to the capital of Buyer the amount of the
Contribution Price, as adjusted pursuant to the terms of this Agreement and
Buyer shall accept such contributions upon the terms and conditions hereinafter
set forth.
NOW, THEREFORE, Seller, TEM and Buyer hereby agree as follows:
1. CONTRIBUTION.
1.1 The Property. Seller shall contribute the Property to
the capital of Buyer and Buyer shall acquire and accept the Property from
Seller upon the terms and conditions hereinafter set forth.
1.2 Contribution Price.
(a) TEM shall contribute to the capital of Buyer
an amount (" Contribution Price") which shall be Fifty-Six Million Five Hundred
Thousand Dollars ($56,500,000), which amount is equal to one-half (1/2) of the
value of the Property.
(b) Allocation of Contribution Price. The Contribution Price is allocated
as follows:
Real Property $ 6,283,645
Improvements $50,068,606
Personal Property $ 147,749
-----------
TOTAL: $56,500,000
The Buyer and Seller agree (i) to jointly complete and separately file Form
8594 with their respective federal income tax return for the tax year in which
the Close of Escrow (as hereinafter
5
9
defined) occurs consistent with the above schedule, (ii) that Buyer shall make
an IRC Section 754 election with respect to the Property and (iii) that no
party will take a position on any return, information statement or writing
relating to any tax, before any governmental agency charged with the collection
of any such tax or in any judicial proceeding that is in any manner
inconsistent with the terms of such allocation, without the written consent of
the other party which consent shall not be unreasonably withheld or delayed.
1.3 Payment of Contribution Price. The Contribution Price as
set forth in Section 1.2 shall be paid as follows:
(a) On the Effective Date, TEM shall deliver an
initial deposit to Escrow Holder (as hereinafter defined) in escrow (as
hereinafter defined, the "Escrow") in the sum of Five Hundred Sixty-Five
Thousand Dollars ($565,000). After satisfaction or waiver of the conditions to
TEM's obligations listed in Section 3.1, TEM shall deliver to Escrow Holder an
additional deposit of One Million One Hundred Thirty Thousand Dollars
($1,130,000). The initial deposit, the additional deposit and all interest
accrued thereon are hereinafter referred to as the "Deposit". The Deposit
shall be paid into an interest-bearing account, which interest shall accrue for
the benefit of TEM up to and including the close of escrow (as hereinafter
defined, the "Close of Escrow") and on the Close of Escrow, the Deposit plus
interest accrued thereon shall be credited against the Contribution Price. If
this Agreement is terminated by TEM in accordance with its terms, TEM shall be
entitled to the return of the Deposit plus interest accrued thereon.
IF TEM DEFAULTS FOR ANY REASON WHATSOEVER IN THE PERFORMANCE
OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND SUCH DEFAULT IS NOT CURED WITHIN
TEN (10) DAYS AFTER WRITTEN NOTICE THEREOF FROM SELLER TO TEM, AND SELLER IS
NOT IN DEFAULT, SELLER SHALL HAVE THE RIGHT TO RETAIN THE DEPOSIT PLUS ANY
INTEREST EARNED THEREON AS SELLER'S DAMAGES FOR TEM'S DEFAULT. TEM AND SELLER
AGREE THAT THEY HAVE MADE GOOD FAITH REASONABLE EFFORTS TO DETERMINE WHAT
SELLER'S DAMAGES WOULD BE IN THE EVENT OF A DEFAULT BY TEM. SELLER AND TEM HAVE
BEEN UNABLE TO ARRIVE AT ANY MEANINGFUL FORMULA OR MEASURE OF DAMAGES FOR TEM'S
DEFAULT AND HAVE THEREFORE AGREED THAT SUCH DAMAGES WOULD BE EXTREMELY DIFFICULT
AND IMPRACTICAL TO DETERMINE IN THE EVENT OF TEM'S
6
10
DEFAULT. THE DEPOSIT SHALL BE LIQUIDATED DAMAGES AND SHALL BE SELLER'S SOLE
RIGHT TO DAMAGES AND SELLER WAIVES ALL RIGHT TO SPECIFIC PERFORMANCE,
CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES OR ANY OTHER REMEDY.
BY INITIALING OR SIGNING WHERE INDICATED BELOW, THE PARTIES
SPECIFICALLY APPROVE THIS LIQUIDATED DAMAGES PROVISION.
SELLER: _________________ TEM: _________________
If Seller defaults for any reason whatsoever in the performance of its
obligations under this Agreement and such default is not cured within ten (10)
days after written notice thereof from TEM to Seller, and TEM is not in
default, then at TEM's sole and exclusive option either (i) upon notice to
Escrow Holder the Deposit shall be immediately returned to TEM and thereupon
this Agreement shall terminate and this Agreement shall be of no further force
or effect, or (ii) TEM shall have the right to pursue an action for specific
performance of the terms of this Agreement.
(b) Buyer shall take title to the Property
subject to the First Deed of Trust and the Second Deed of Trust and TEM shall
receive a credit against the Contribution Price for one-half (1/2) of the
outstanding principal balance plus accrued but unpaid interest on the First
Note and the Second Note as of the Close of Escrow.
(c) The balance of the Contribution Price, plus
or minus prorations, shall be deposited together with TEM's portion of the
closing costs and reimbursements required hereunder, in immediately available
funds to a bank account designated by Escrow Holder on or before the Close of
Escrow and shall be paid toward the Contribution Price at the Close of Escrow.
2. ESCROW AND CLOSING.
2.1 Escrow. The closing of the contribution of the Property
shall take place at the offices of Chicago Title Insurance Company ("Escrow
Holder"), ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇
▇▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇.
7
11
2.2 Closing. The closing of the Escrow (the "Closing" or the
"Close of Escrow") shall occur on June 11, 1997 (the "Closing Date") or such
other date as the parties shall mutually agree.
2.3 The Close of Escrow shall be in accordance with the
following terms, conditions and restrictions:
(a) Escrow Authorization and Commitment of
Parties. A fully-executed copy of this Agreement shall be deposited with
Escrow Holder as escrow instructions within ten (10) days of the date hereof.
Amended and/or additional instructions ("Additional Escrow Instructions") not
inconsistent with the terms and conditions of this Agreement may be received
into Escrow from TEM and Seller. Escrow Holder is hereby authorized and
instructed to deliver the documents and moneys to be deposited into Escrow as
hereinafter provided, with the terms and conditions contained herein to apply
to the Escrow. Seller, TEM and Buyer shall, prior to Close of Escrow, execute
any and all documents and perform any and all acts reasonably necessary or
appropriate to close the transactions pursuant to the terms of this Agreement.
(b) Documents to be Deposited with Escrow Holder
by Seller. On or before the Close of Escrow, Seller shall deposit into Escrow
for delivery to Buyer upon the close hereof (the "Seller Closing Documents"):
(i) An executed special warranty deed
(the "Deed") in the form attached hereto as Exhibit "F" conveying the Real
Property and Improvements to Buyer subject only to the Permitted Exceptions;
(ii) An instrument of assignment (the
"Assignment and Assumption of REA") in the form attached hereto as Exhibit "G"
assigning to Buyer Seller's right, title and interest in and to the REA;
(iii) An executed ▇▇▇▇ of sale (the "▇▇▇▇
of Sale") in the form attached hereto as Exhibit "H" conveying the Personal
Property to Buyer;
8
12
(iv) An executed instrument of assignment
and assumption in the forms attached hereto as Exhibit "I" (the "Assignment and
Assumption of Leases") assigning to Buyer Seller's right, title and interest in
and to:
(1) Any Lease with respect to any
tenancy or occupancy in the Property in force as of the Close of Escrow, and
any personal guaranty or guaranties of any such Lease.
(2) The security deposits or
cleaning deposit, key deposit, advance rentals, or similar items paid to or for
the benefit of Seller by any tenant of the Property as are more particularly
described on Exhibit "J" attached hereto (the "Security Deposits").
(v) An instrument of assignment covering
all Service Contracts (the "Assignment and Assumption of Service Contracts") in
the form attached hereto as Exhibit "K";
(vi) Executed assignment or assignments
assigning to Buyer the Intangible Assets, if any, in the form attached hereto
as Exhibit "L";
(vii) An executed counterpart of the
Partnership Agreement (the "Partnership Agreement") in the form attached hereto
as Exhibit "M";
(viii) Executed Management Agreement (the
"Management Agreement") in the form attached hereto as Exhibit "N".
(ix) A FIRPTA Certificate, in the form
attached hereto as Exhibit "O", duly executed and acknowledged.
(x) Closing Statements duly executed by
Seller.
(xi) An updated, revised litigation
schedule.
(xii) Evidence of the authority of Seller
to execute, and perform under the terms of, this Agreement.
9
13
(xiii) Evidence of authority of each
general partner of Seller to execute, and perform on behalf of Seller, this
Agreement.
(xiv) The Mortgagee Estoppel (as
hereinafter defined).
(xv) A written certificate executed on
behalf of Seller and addressed to TEM and Buyer to the effect that all of the
representations and warranties of Seller herein contained in Section 7.1 are
true and correct in all material respects as of the Closing Date with the same
force and effect as though remade and repeated in full on and as of the Closing
Date or stating the specific respects, if any, in which any of the
representations and warranties is untrue.
(xvi) Certificate issued by the Nevada
Secretary of State, dated not more than ten (10) days prior to the Closing
Date, certifying the good standing of the respective general partners of
Seller.
(xvii) Copies of the Articles of
Organization of each of the general partners of Seller and any amendments
thereto, certified by the Secretary of State of their respective states of
incorporation, as of a date not more than ten (10) days prior to the Closing
Date, together with a certificate of an officer of such general partner to the
effect that the Articles of Organization thereof, as certified by the Secretary
of State aforesaid, have not been further amended, revised, restated, cancelled
or rescinded up to and including the Closing Date.
(xviii) An opinion or opinions of counsel
for Seller dated as of the Closing Date, in the form of Exhibit "X" attached
hereto and otherwise in form and substance reasonably acceptable to TEM.
(xix) An updated Rent Roll showing amounts
payable as of the Closing Date or a date not more than five (5) days prior
thereto.
(xx) The instruments, documents or
certificates as are customarily required by the Title Company to be executed or
provided by Seller as a condition to the issuance
10
14
of the Title Policy at the Closing pursuant to the Title Commitment, including,
without limitation, owner's affidavits, mechanics' lien affidavits, personal
undertakings and ALTA Statements.
(xxi) All additional documents,
instruments, amendments or supplements as in the reasonable opinion of TEM's
and Seller's counsels and their respective representatives are necessary for
the proper consummation of the transactions contemplated by this Agreement.
The original Leases, or copies, if originals are unavailable, of all Licenses
and Permits, the plans and specifications for the Improvements, to the extent
available, the Books and Records and all keys and entrance cards in Seller's
possession to all locks on the Property, tagged for identification, shall
remain at the Property in the offices of the Property staff.
(c) Documents to be Deposited with Escrow Holder
by Buyer. On or before the Close of Escrow, Buyer shall deposit the following
into Escrow.
(i) an executed counterpart of the
Assignment and Assumption of REA.
(ii) an executed counterpart of the
Assignment and Assumption of Leases.
(iii) an executed counterpart of the
Assignment and Assumption of Services Contracts.
(iv) Evidence of the authority of Buyer
to execute and perform this Agreement.
(v) A Closing Statement duly executed by
Buyer.
(vi) An executed counterpart of the
Partnership Agreement.
(vii) An executed counterpart of the
Management Agreement.
11
15
(viii) A certificate issued by the
Secretary of State of Delaware, dated not more than ten (10) days prior to the
Closing Date, certifying the good standing of TEM.
(ix) A copy of the Agreement of Limited
Partnership of TEM and any amendments thereto, certified by an officer of the
general partner of TEM to the effect that the Agreement of Limited Partnership
thereof has not been further amended, revised, restated, cancelled or rescinded
up to and including the Closing Date.
(x) An opinion or opinions of counsel
for TEM dated as of the Closing Date, in the form of Exhibit "Y" attached
hereto and otherwise in form and substance reasonably acceptable to Seller.
(xi) All additional documents,
instruments, amendments or supplements as in the reasonable opinion of Seller's
and TEM's counsel and their respective representatives are necessary for the
proper consummation of the transactions contemplated by this Agreement.
(d) Sums to be Deposited with Escrow Holder by
TEM. On or before the Close of Escrow, TEM shall deposit with Escrow Holder
the sums as provided in Section 1.3, together with all additional documents,
instruments, amendments or supplements as in the reasonable opinion of TEM's
and Seller's counsels and their respective representatives are necessary for
the proper consummation of the transactions contemplated by this Agreement.
(e) Title Insurance. Title Company shall furnish
to Buyer a Texas Land Title Association owners policy of title insurance
(together with reinsurance and direct access agreements reasonably acceptable
to Buyer) (the "Title Policy") in the amount of the Purchase Price from the
Title Company, insuring fee title to the Property vested in Buyer as of the
Close of Escrow, subject only to the permitted exceptions listed on Exhibit "P"
attached hereto and incorporated herein by reference (the "Permitted
Exceptions") and the standard printed exceptions and other common exceptions
generally included in Schedule B of Title Binders endorsed as provided in the
following paragraph and with the standard survey exception deleted except for
"shortages in
▇▇
▇▇
▇▇▇▇". The cost of the Title Commitment, Title Policy and all search charges
shall be borne equally by TEM and Seller.
Attached hereto as Exhibit "Q" is the Title Commitment issued
by the Title Company showing the state of title of the Property. Buyer shall
have no obligation to accept or approve any exceptions on the Title Commitment
except to the extent mentioned above. If after Buyer's approval of the Title
Commitment any additional items except the Permitted Exceptions are shown in
the Title Policy to be provided to Buyer hereunder and Seller fails to remove
the same or cause the Title Company to insure over such item by endorsement
approved by TEM prior to the Close of Escrow, TEM shall have the right to
either (x) complete the transactions hereunder and accept the effect of the
additional items; provided, however, that TEM shall thereupon have the right to
deduct from the Contribution Price the amount of any such additional item which
is a monetary lien of a fixed and ascertainable amount not in excess of Five
Hundred Thousand Dollars ($500,000); or (y) terminate the Escrow as TEM's and
Buyer's sole and exclusive remedy prior to the Close of Escrow and the Deposit
and all interest earned thereon shall be returned to TEM in full. Seller shall
remove or insure over any monetary liens which show as an exception to the
Title Commitment and not approved above. Seller shall execute and deliver such
affidavits as may reasonably be required by the Title Company, including an
affidavit to enable the Title Company to limit any exception in policies for
"rights of Tenants or rights of parties in possession" to the "occupancy rights
of Tenants as Tenants only under the space leases with no right or option to
purchase the Property or any portion thereof" listed in the current schedule to
be delivered by Seller to Buyer at the Close of Escrow as provided herein. At
least ten (10) business days prior to the date of the Close of Escrow, the
Title Company shall furnish Buyer with a pro forma of each Title Policy
(including all of the co-insurance, reinsurance and direct access agreements
which constitute part thereof) substantially as the Title Company is prepared
(subject to events occurring after the date and time of such pro forma and
prior to Close of Escrow) to bind itself to issue as the Title Policy.
(f) Survey. Within ten (10) days after the
Effective Date, Seller, at Seller's expense, shall deliver to TEM an update of
the ALTA Survey of the Mall prepared by ▇▇▇▇▇▇ ▇.
13
17
Wood of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., Inc. (Job No. 4757) dated September 16, 1986
and most recently updated November 12, 1996 (the "Survey"), certified to the
Title Company, Seller, TEM and Buyer. The Survey shall be updated to a date on
or after May 1, 1997, to accuracy standards under the "Minimum Standard Detail
Requirements for ALTA/ACSM Land Surveys" jointly established by the American
Land Title Association and American Congress on Surveying and Mapping currently
in effect and containing Table A Optional Survey Responsibilities and
Specifications 1, 2, 3, 4, 6, 7(a), 7(b)(1), 7(c), 8, 9, 10, 11 and 13. If the
updated Survey discloses any additional items except the Permitted Exceptions
and Seller fails to remove the same prior to the Close of Escrow, TEM shall
have the right to either (x) complete the transactions hereunder and accept the
effect of the additional items; or (y) terminate the Escrow as TEM's and
Buyer's sole and exclusive remedy prior to the Close of Escrow and the Deposit
and all interest earned thereon shall be returned to TEM in full.
(g) Duties of Escrow Holder. On the Close of
Escrow, Escrow Holder shall (1) cause the Deed, and the Assignment and
Assumption of REA, and the Assignment and Assumption of Leases (as to those
Leases that are recorded only) to be recorded in the Office of the County
Recorder of Dallas County, Texas, (2) deliver to Buyer the Title Policy, (3)
deliver to Seller the cash proceeds in accordance with the Closing Statement,
and (4) forward to Buyer and Seller, in duplicate, an accounting of all funds
received and disbursed and copies of all executed and recorded or filed
documents deposited into Escrow, with such recording and filing dated endorsed
thereon.
(h) Prorations - General. All rentals, revenues
and other income of the Property, if any, and all utilities, real estate taxes,
maintenance charges and other regular operating expenses of the Property, if
any, shall be paid or shall be prorated between Seller and the Buyer in
accordance with the provisions set forth in Sections 2.3(h) through (q)
inclusive. For purposes of the prorations and adjustments to be made, the
Buyer shall be deemed to own the Property and therefore shall be entitled to
any revenues and responsible for any expenses for the entire day upon which the
Closing occurs. Any apportionments and prorations which are not expressly
provided for below shall be made in accordance with the customary practice in
the metropolitan Dallas, Texas area. Seller and Buyer shall cause
14
18
their accountants to prepare the schedules of adjustments (the "Closing
Statement") prior to the Proration Date. Any net adjustment in favor of the
Buyer shall be paid in the form of a credit to the Purchase Price. Any net
adjustment in favor of the Seller shall be paid in cash or cash equivalent by
Buyer to Seller at Closing. A copy of the Closing Statement agreed upon by
Seller and Buyer shall be executed by both Seller and Buyer and delivered to
the Title Company at the Closing. All Rentals received by Seller or any of its
affiliates or its general partners related to any period after the Proration
Date shall be immediately paid to Buyer. The parties shall make an interim
closing adjustment (the "Interim Closing Adjustment") on July 31, 1997 and a
final closing adjustment (the "Final Closing Adjustment") on July 31, 1998.
The Interim Closing Adjustment and the Final Closing Adjustment are jointly
referred to as the "Closing Adjustments".
(i) Prorations - Rentals. Rentals shall be
prorated upon the Closing in accordance with the following provisions.
(i) Minimum Rent. Subject to Subsection
2.3(g)(iv) below with respect to Delinquent Rentals, Minimum Rent shall be
prorated between Seller and Buyer as of the Proration Date on an accrual basis
based on the actual number of days in the month during which the Closing
occurs. Seller shall be entitled to all Minimum Rent which accrues up to and
including the Proration Date and Buyer shall be entitled to all Minimum Rent
which accrues after the Proration Date.
(ii) Additional Rental. Subject to
Subsection 2.3(i)(iv) below with respect to Delinquent Rentals, and Section
2.3(m) with respect to the Closing Adjustments, estimated monthly or quarterly
payments made by Tenants of the Property, or parties to the REA, in advance
based upon projected Additional Rentals shall be prorated between Seller and
Buyer as of the Proration Date on an accrual basis based on the actual number
of days in the month during which the Closing occurs. Seller shall be entitled
to all Additional Rent which accrues up to and including the Proration Date and
Buyer shall be entitled to all Additional Rent which accrues after the
Proration Date.
15
19
(iii) Percentage Rent. Percentage Rent
(if any) payable by a Tenant under each Lease shall be separately prorated as
of the Proration Date between Seller and Buyer in the manner provided in this
Subsection 2.3(g)(iii). Such proration shall be made on a Lease-by-Lease basis
and shall be based upon the fiscal year set forth in each Lease for the
determination of Percentage Rent. The actual fiscal year for Percentage Rent
during which the Closing occurs is hereinafter referred to as the "Applicable
Percentage Rent Fiscal Year". To the extent a Tenant makes monthly or
quarterly interim payments on account of Percentage Rent, the Seller shall
initially retain all such interim payments of Percentage Rent received by the
Seller up to and including the Proration Date until a Closing Adjustment occurs
and Buyer shall initially retain all such interim payments of Percentage Rent
received by Buyer after the Proration Date until a Closing Adjustment occurs.
At each Closing Adjustment, the Seller and Buyer shall prorate the total annual
Percentage Rent due from a Tenant for such Tenant's Applicable Percentage Rent
Fiscal Year as follows: (a) Seller shall be entitled to the portion of the
Percentage Rent payable by each Tenant equal to the product obtained by
multiplying the total annual Percentage Rent paid by each such Tenant by a
fraction, the numerator of which is the number of days in the Applicable
Percentage Rent Fiscal Year up to and including the Proration Date and the
denominator of which is the number of days in the Applicable Percentage Rent
Fiscal Year; and (b) the Buyer shall be entitled to the portion of the
Percentage Rent payable by each Tenant equal to the product obtained by
multiplying the total annual Percentage Rent paid by each such Tenant by a
fraction, the numerator of which is the number of days in the Applicable
Percentage Rent Fiscal Year after the Proration Date and the denominator of
which is the number of days in the Applicable Percentage Rent Fiscal Year.
(iv) Delinquent Rental. As used herein,
"Delinquent Rentals" means Rentals which are due and payable by a Tenant on or
prior to the Proration Date but which have not been paid by the Proration Date.
Delinquent Rentals shall be prorated between Seller and Buyer as of the
Proration Date, but not until they are actually collected by Buyer. Buyer
shall have the right after the Closing to collect Delinquent Rentals relating
to the period prior to the Proration Date, but shall not be obligated to do so.
Upon the Final Closing Adjustment, any Delinquent Rentals
16
20
which have not as yet been paid shall be assigned to Seller. After the Closing
and continuing through and after the Final Closing Adjustment, without the
express written consent of Buyer, the Seller shall not take, nor cause Buyer to
take, any action against a Tenant owing Delinquent Rentals which would affect
such Tenant's right to occupy its leased premises. Rentals collected by Buyer
after the Closing, shall be applied in the following order of priority: (a)
first, to the particular rental obligation, if any, for which the Tenant
designates the payment has been made (e.g., by a notation on the Tenant's check
or in an accompanying cover letter or if the payment is made in response to an
invoice submitted to the Tenant); and (b) secondly, against the Tenant's Rental
obligations in reverse chronological order in which they accrue. All
Delinquent Rentals received by Buyer or any of its affiliates after the
Proration Date shall be immediately applied in accordance with the above and
any amount owing to Seller shall be immediately paid upon application, less the
amount of any management fee or compensation paid or due to Manager with
respect to such Delinquent Rentals; however, in no event later than thirty (30)
days after collection.
(A) Seller shall have the right to commence
litigation against the Tenants owing Delinquent Rents (the "Delinquent
Tenants") to collect the Delinquent Rentals, which pursuant to the
above, the Seller is entitled to as and when collected. Seller may
proceed with counsel of its own choosing, and at its own expense, to
collect any such Delinquent Rentals due by the Delinquent Tenants
which are allocable to Seller, provided that Seller shall not seek (i)
termination of any Lease; (ii) eviction of any Delinquent Tenant; nor
(iii) to levy against the Delinquent Tenant's interests in the Lease,
all without the prior written consent of Buyer.
(B) In the event a Delinquent Tenant
owes Delinquent Rental which is properly allocable to both Seller and
Buyer, Seller and Buyer shall cooperate in collecting such Delinquent
Rental. If Seller desires to commence litigation as to Delinquent
Rentals properly allocable to it, but Buyer does not so desire to
commence litigation, then Seller may commence litigation as set forth
in (A) above. If both parties
17
21
desire to commence litigation, Buyer shall institute such litigation
on its behalf and Seller's share of any recovery of the Delinquent
Rentals from such litigation, after the payment of all expenses in
connection therewith, shall be apportioned between Buyer and Seller in
accordance with this Subsection 2.3(i)(iv).
(j) Proration - Taxes and Assessments. All
non-delinquent real estate and personal property taxes on the Property not
otherwise reimbursed by Tenants under their Leases or by a party to the REA
shall be prorated between the Seller and Buyer on an accrual basis, based upon
the actual current tax ▇▇▇▇ for the tax year in which the Closing occurs. If
the most recent tax ▇▇▇▇ received by Seller as of the Proration Date is not the
actual current tax ▇▇▇▇, then the Seller and Buyer shall re-prorate the real
estate and personal property taxes at the Final Closing Adjustment if the
actual current tax ▇▇▇▇ is then available. All amounts payable for real estate
and personal property taxes accruing up to and including the Proration Date
shall be the obligation of the Seller and all amounts payable for real estate
and personal property taxes accruing after the Proration Date shall be the
obligation of Buyer. If, after the Proration Date, any additional or
supplemental real estate and personal property taxes are assessed against the
Property by reason of back assessments, corrections to previous tax bills or
other events occurring up to and including the Proration Date, the Seller and
Buyer shall re-prorate the real estate and personal property taxes at the Final
Closing Adjustment to provide the appropriate credit. Any delinquent real
estate and personal property taxes on the Property shall be paid by Seller at
the Closing.
(k) Proration - Operating Expenses, Interest and
Insurance Premiums. All costs, expenses, charges and fees for sewer, water,
electricity, heat and air-conditioning service and other utilities, common area
maintenance charges, insurance premiums, rental and privilege taxes, business
occupation taxes, promotional expenses, the Roof Repair Fund, periodic charges
payable under Service Contracts which are assigned to Buyer, periodic fees
payable under transferable Licenses and Permits for the operation (as opposed
to the construction) of the Property, periodic charges under the REA, any
payroll, employee benefits,
18
22
employee related taxes or other labor costs paid by Seller (if assumed by Buyer
directly or indirectly) and any other costs incurred in the ordinary course of
business for the management and operation of the Property, the interest on the
First Note and the Second Note (based on a 30 day month and a 360 day year) and
insurance premiums shall be prorated between Seller and Buyer on an accrual
basis, based on the actual number of days in the month during which the Closing
occurs. The Seller shall be responsible for all such expenses that are
attributable to the period up to and including the Proration Date and Buyer
shall be responsible for all such expenses which are attributable to the period
after the Proration Date. To the extent commercially reasonably and
practicable, Seller shall obtain ▇▇▇▇▇▇▇▇ and meter readings as of the day up
to and including the Proration Date to aid in such prorations. If ▇▇▇▇▇▇▇▇ or
meter readings as of the day up to and including the Proration Date are
obtained, adjustments of any costs, expenses, charges or fees shown thereon
shall be made in accordance with such ▇▇▇▇▇▇▇▇ or meter readings.
(l) Proration - Security Deposits and Other
Tenant Credits. At the Closing, Buyer shall be credited with and the Seller
shall be charged with an amount equal to the sum of (i) the Security Deposits
(and any interest due to Tenants thereon, if any) being held by Seller or any
other person under the Leases as designated on the Rent Schedule, plus (ii) the
amount of any other credits due Tenants. Upon the Closing, the Seller shall be
entitled to retain the Security Deposits or other such credits due Tenants, for
which Buyer has been credited and Seller has been charged pursuant to this
Subsection 2.3(l).
(m) Adjustment Dates. On July 31, 1997, Seller
and Buyer shall make an interim adjustment (the "Interim Closing Adjustment")
and no later than July 31, 1998, Seller and Buyer shall make a final adjustment
(the "Final Closing Adjustment") to the prorations, each pursuant to this
Subsection 2.3(m). The Interim Closing Adjustment and the Final Closing
Adjustment shall be made as set forth below in this Subsection 2.3(m).
(i) General. Payment of Delinquent
Rentals collected by Buyer after the Proration Date which have not been
adjusted at the Interim Closing Adjustment and which are attributable to the
period up to and including the Proration Date, shall be made by Buyer to Seller
when and as collected and
19
23
as soon as practicable following receipt. All other adjustments or prorations
which could not be determined at the Closing or the Interim Closing Adjustment
due to the lack of actual statements, bills or invoices for the current period,
the year-end adjustment of Additional Rentals, the unavailability of final
sales figures or amounts for Percentage Rent or for any other reason shall be
made at the Final Closing Adjustment. Any net adjustment determined at each
respective Adjustment Date in favor of Buyer shall be paid in cash or cash
equivalent by the Seller to Buyer no later than twenty (20) days after the
respective Adjustment Date. Any net adjustment in favor of the Seller shall be
paid in cash or cash equivalent by Buyer to the Seller no later than twenty
(20) days after the respective Adjustment Date.
(ii) Additional Rental Adjustment. The
actual amount of Additional Rentals paid by each Tenant of the Property for the
annual period in which the Proration Date occurs (as distinguished from the
estimated amounts prorated as of the Proration Date pursuant to Subsection
2.3(i)(ii) above) shall be separately prorated between the Seller and Buyer as
of the Proration Date based on the actual number of days in the annual period
during which the Proration Date occurs. Buyer shall pay to Seller an amount
(if any) equal to the excess of (1) the product obtained by multiplying (A) the
total amount of Additional Rentals paid by the Tenant to Seller and the Buyer
for the annual period during which the Proration Date occurs, by (B) a
fraction, the numerator of which is the number of days in the annual period up
to and including the Proration Date and the denominator of which is the total
number of days in the annual period over (2) the sum of (X) the total amount of
the monthly or quarterly payments of estimated Additional Rentals actually
collected by Seller from the Tenant for the months or quarters preceding the
month or quarter during which the Proration Date occurs, (Y) a pro-rated
portion of the monthly or quarterly estimated Additional Rentals paid by the
Tenant for the month or quarter during which the Proration Date occurs (i.e.,
the amount of the adjustment pursuant to Section 2.3(i)(ii) above) and (Z) the
entire amount of the monthly or quarterly estimated Additional Rentals which
constitutes Delinquent Rentals and which is collected by the Buyer from the
Tenant after the Proration Date and paid over to Seller by the Buyer pursuant
to Subsection 2.3(i)(iv) above. If, for any Tenant, the Additional Rent
received by Seller, up to and including the Proration Date,
20
24
exceeds the product obtained above, the Seller shall pay the excess to Buyer.
If the total sum of all advance payments of projected Additional Rentals
exceeds the Additional Rentals actually due from the Tenant for the annual
period in which the Proration Date occurs, Buyer shall remit or credit the
Tenant with such excess.
(iii) Percentage Rent Adjustment. To the
extent the sum of all interim payments on account of Percentage Rent collected
by the Seller from each Tenant for the Applicable Percentage Rent Fiscal Year
exceeds the amount of Percentage Rent to which Seller is entitled with respect
to such Tenant pursuant to Subsection 2.3(i)(iii), the Seller shall pay such
excess to Buyer. To the extent the sum of all interim payments on the account
of Percentage Rent collected by Buyer from each Tenant for the Applicable
Percentage Rent Fiscal Year exceeds the amount of Percentage Rent to which
Buyer is entitled with respect to such Tenant, then Buyer shall pay such excess
to the Seller. Any such adjustment of interim payments received and actual
Percentage Rent payable shall be made on a Lease-by-Lease basis (as opposed to
aggregating all interim payments received by the Seller from all Tenants and
offsetting the same against the entire amount of Percentage Rent payable by all
Tenants). If the total sum of the interim payments on account of Percentage
Rent collected by the Seller plus the interim payments on account of Percentage
Rent collected by Buyer exceeds the Percentage Rent actually due from the
Tenant, Buyer shall remit or credit Tenant with such excess and the Seller and
Buyer shall make any necessary adjustment between them in accordance with the
preceding provisions of this Subsection 2.3(m)(iii).
(iv) No Further Adjustments. On the
Final Adjustment Date, final prorations shall be made and, to the extent
necessary, Buyer and Seller shall estimate items for which final sums are not
available. Except for: (a) additional or supplemental real estate taxes, real
estate tax credits or rebates, or other adjustments to real estate taxes due to
back assessments, corrections to previous tax bills or real estate tax appeals
or contests, and (b) any Additional Rentals or any Percentage Rent which may be
contested by Tenants or cannot be computed by the Final Adjustment Date, the
Final Closing Adjustment shall be conclusive and binding upon the Seller and
Buyer.
21
25
(n) Leasing Commissions and Tenant Improvements.
Any and all leasing commissions due and tenant improvements with respect to
Leases in existence on the date hereof including the Pending Leases (as
hereinafter defined in Exhibit "R") shall be paid in full and discharged by
Seller. Any and all leasing commissions and tenant improvements with respect
to Leases executed after the date hereof in accordance with the consent
provisions described below, except for the Pending Leases shall be paid in full
and discharged by Buyer.
(o) Roof Repair Fund (herein so called). All
roof repair fund payments accruing after the Close of Escrow shall be for the
benefit of Buyer, and Seller hereby waives any rights or claims to any roof
repair funds or monies for all sums paid after the Closing Date and not
specifically related to an invoice sent to a Tenant for a period to the Closing
Date.
(p) Payment of Expenses. Except as otherwise
specifically provided in this Agreement, Seller and Buyer shall each pay all of
their own expenses incurred in connection with this Agreement and the
transactions contemplated hereby, including all related accounting, legal and
appraisal fees.
(q) Continuing Effect. Notwithstanding any
provisions of this Agreement to the contrary, the agreements made by Seller and
Buyer pursuant to Subsections 2.3(h) through (p) (inclusive) shall survive the
Closing.
(r) Recordation; Escrow Fees. The cost of the
municipal transfer taxes, if any, state and county transfer taxes required to
be affixed to the deeds required herein, recording fees and escrow fees of
Escrow Holder shall be divided and paid equally by Buyer and Seller.
2.4 Escrow Holder Authorized to Complete. If necessary,
Escrow Holder is hereby authorized to insert the date of the Close of Escrow as
the execution date of the deeds and is further authorized to insert the date of
the Close of Escrow and to fill in blank spaces in any and all documents and
instructions delivered to it so long as it is done in conformance with this
Agreement.
22
26
3. CONDITIONS AND INSPECTION.
3.1 Conditions to TEM's and Buyer's Obligations. TEM shall
have until 5:00 p.m. (Central Daylight Time) June 9, 1997 (the "Approval Time")
to review and approve the "due diligence" matters set forth in Subsection
3.1(d). Buyer has reviewed and approved the matters set forth in Subsection
3.1(a), (b) and (c). If any of the Property or the "due diligence" matters are
not approved by TEM by the Approval Time, or if any of the conditions set forth
in Subsections 3.1(d), (e), (f) and (g) are not satisfied by the respective
dates set forth therein (each such date being called an "End Date"), then TEM
may elect to terminate this Agreement and receive the return of the Deposit and
all interest earned thereon. TEM's election to terminate this Agreement
pursuant to this Section 3.1 shall be effective if, on or before the Approval
Time or the End Date, whichever is applicable, TEM has delivered to Seller and
Escrow Holder TEM's notice of termination. Upon receipt by Escrow Holder of
TEM's notice of termination pursuant to Section 3.1, Escrow Holder shall
immediately return the Deposit and all interest earned thereon to TEM and this
Agreement shall be deemed terminated. If TEM fails to notify Seller of its
election to terminate this Agreement in accordance with this Section 3.1, then
this Agreement shall remain in full force and effect.
(a) Seller (i) has made available to TEM all
plans and specifications for the Property in Seller's possession or under
Seller's control, together with all soils, geological and environmental reports
and governmental reports in Seller's possession or under Seller's control in
connection with the construction of improvements on the Property, and (ii)
permitted TEM to examine the conditions of the Property, including but not
limited to its soils and any environmental, structural, electrical, mechanical,
roof, HVAC and other elements relating to the Real Property and the
Improvements. TEM shall provide Seller with copies of all reports prepared by
parties other than TEM in connection with TEM's examination of the Property.
TEM shall give Seller, or Seller's manager or agent, designated by Seller for
this purpose, at least twenty-four (24) hours' notice in advance of any
intended inspection or entry. TEM shall comply with all laws and governmental
regulations applicable to such inspection or entry. TEM shall indemnify,
defend with counsel reasonably acceptable to Seller, and hold Seller, its
directors,
23
27
officers, employees, agents, representatives, attorneys and consultants
harmless from and against any and all losses, costs, damages, liabilities and
expenses (including reasonable attorneys' fees and costs of suit), arising out
of acts or activities of TEM or TEM's agents or consultants on or about the
Property; provided TEM shall only be responsible for actual, out-of-pocket
losses, costs, damages, liabilities and expenses. TEM shall not remove
flooring, make excavations or test borings, disturb any plants, trees or
shrubs, or engage in any other activities destructive of the Property without
Seller's consent, which consent shall not be unreasonably withheld or delayed.
Any damage to the Property made by TEM or any persons acting for or on behalf
of TEM shall be repaired promptly, replacing or restoring any vegetation that
is damaged and generally putting the Property and all points of entry by the
inspectors in substantially the same condition as before the inspection or
entry.
(b) TEM, through its affiliate, the Manager, has
copies of all Leases and amendments thereto relating to any portion of the
Property, and Seller shall immediately deliver to TEM copies of any Leases or
any subleases in Seller's possession, and any pending leases.
(c) After acceptance of this Agreement, TEM (or
its authorized employees and agents) shall have the right to examine all of
Seller's books and records pertaining to the Property including without
limitation the following documents:
(i) Copies of all certificates of
occupancy, licenses, permits, authorizations, and approvals required by law and
issued by all governmental authorities having jurisdiction and copies of all
certificates issued by the local board of fire underwriters (or other body
exercising similar functions);
(ii) Copies of all certificates of
existing insurance policies in force affecting the Property or any portion
thereof and a synopsis of the existing policies (TEM shall have the right to
review the existing policies at Seller's office);
(iii) The original of each ▇▇▇▇ for
current real estate and personal property taxes and for the two most recent
prior years, a current statement of assessed valuation,
24
28
water charges and other utilities, together with proof of payment thereof;
(iv) All records and files relating to
the Property including those records and files relating to the ownership,
management, operation and maintenance of the Property;
(v) The current operating budget for the
Property with applicable documentary support and operating statements for the
years 1994, 1995 and 1996;
(vi) The financial records of tenant
sales and tenant sales reports for 1994, 1995, 1996 and year to date 1997; and
(vii) Tenant expense recapture calculation
worksheets and resulting billing for 1995, 1996 and projected 1997.
(d) TEM shall have the right to disapprove the
updated Survey described in Section 2.3(f) if it reflects any material change
from the Survey.
(e) Seller shall perform, observe and comply with
all the covenants, agreements, and conditions required by this Agreement to be
performed, and observed, and complied with by, prior to or as of Close of
Escrow.
(f) The Title Company shall issue the Title
Policy as of Close of Escrow.
(g) As of the Close of Escrow, Seller shall not
have made a general assignment for the benefit of creditors, nor have admitted
in writing its inability to pay its debts as they become due, nor have filed a
petition in bankruptcy or been adjudicated a bankrupt or insolvent or have
filed a petition seeking any reorganization, arrangement, composition,
readjustment liquidation, dissolution or similar relief under any present or
future statute, law or regulation, nor have filed any answer admitting or
failing to reasonably contest the material allegations of a petition filed
against it in any such proceeding or seek or consent to or acquiesce in the
appointment of any
25
29
trustee, receiver or liquidator of Seller for any material part of Seller's
property.
3.2 Conditions to Seller's Obligations. Seller's obligations
to close Escrow and complete the transaction contemplated herein is subject to
TEM's performance, observance and compliance with all the covenants,
agreements, and conditions required by this Agreement to be performed, and
observed, and complied with by, prior to or as of Close of Escrow.
3.3 Upon termination of this Agreement pursuant to Section
3.1 hereof, TEM shall return any and all documents, studies and other items
received from Seller in TEM's possession, under control of, or reasonably
available without additional cost to, TEM and Seller shall thereafter maintain
the confidentiality of all such information relating to the Property and Seller
as provided in Section 14.12 hereof.
4. CONDITIONS TO CLOSING.
4.1 Conditions to Closing. In addition to the conditions
set forth in Section 3.1 above, the Closing and TEM's obligation to pay the
Contribution Price and complete the transaction contemplated by this Agreement
are subject to satisfaction of the following conditions, no later than the
respective dates specified below in this Section 4.1, and the obligations of
the parties with respect to such conditions are as follows:
(a) Moratorium. At the Closing Date, there shall
be no statute, law, judicial or administrative decision, proceeding, ordinance
or regulation pending, or proposed and known to Seller, to be imposed by the
Authorities or any public or private utility having jurisdiction over the
Property which would prevent or materially and adversely impair the operation
or use of the Property in the manner it is currently operated or used.
(b) Representations, Warranties and Covenants of
Seller. Seller shall have materially performed each and every agreement to be
performed by Seller hereunder and TEM shall have approved, pursuant to the
Seller's Certificate (hereinafter
26
30
defined), any material changes in the truth and accuracy of Seller's warranties
and representations.
(c) No Material Changes. As of the Closing,
there shall have been no material adverse changes in the physical or financial
condition of the Property. For purposes of this Subsection 4.1(c), a "material
adverse change in the physical or financial condition of the Property" shall
mean (i) the closing of operations by an Anchor of more than twenty-five
percent of its store in the Mall or (ii) a change in the physical condition of
the Property other than by condemnation or casualty which will result in
$2,500,000 of loss of value to the Property or (iii) $250,000 of loss of
annualized income of the Property.
(d) Seller's Deliveries. On or before the
Closing Date, Seller shall have delivered or caused to be delivered the items
described herein to be delivered by Seller.
(e) Title and Title Insurance. At the Closing
Date, the Title Company shall have issued or shall have unconditionally
committed to issue the Title Policy to Buyer as provided herein.
(f) ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act
of 1976. On the Closing Date, the transaction shall be in compliance with that
law commonly known as the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976.
(g) Estoppels Obtained. The Mortgagee Estoppel
shall have been obtained and delivered to TEM.
4.2 Conditions Precedent to Seller's Obligations. The
Closing and Seller's obligation to transfer the Property to Buyer and
consummate the transaction contemplated by this Agreement are subject to the
satisfaction of the following conditions, no later than the respective dates
specified below in this Section 4.2, and the obligations of the parties with
respect to such conditions are as follows:
(a) Buyer's and TEM's Deliveries. On or before
the Closing Date, Buyer and TEM shall have delivered the items described herein
to be delivered by Buyer and TEM, respectively.
27
31
(b) Contribution Price. On or before the Closing
Date, TEM shall have deposited into Escrow, for disbursement as provided
herein, the Contribution Price in accordance with Section 1.3 of this
Agreement.
(c) Representations, Warranties and Covenants of
Buyer and TEM. Buyer and TEM shall have materially performed each and every
agreement to be performed by Buyer and TEM hereunder and each and every one of
Buyer's and TEM's representations, warranties and covenants set forth in this
Agreement shall be true and correct in all material respects as of the Closing
Date.
(d) ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act
of 1976. On the Closing Date, the transaction shall be in compliance with that
law commonly known as the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976.
5. ADDITIONAL OBLIGATIONS OF PARTIES.
5.1 Security Deposits. Subject to the provisions of Section
2.3(l), Seller shall, at the Close of Escrow, prorate and turn over to Buyer a
current list of all tenants and security deposits, as well as all security
deposited by any tenant where not prohibited by terms of the tenant's Lease and
all of the original Leases under Seller's possession or control; and in
connection with the receipt thereof, Buyer will hold and apply the security
deposits for the purposes set out in such tenant's Lease and indemnify Seller
against any liability in connection therewith.
5.2 Notices to Tenants, Parties to REA and Service
Contractors. Immediately after the Close of Escrow, Seller and Buyer shall
give written notices (i) to the Parties to the REA advising them of the change
of ownership and directing them to pay all charges under the REA as directed by
Buyer; (ii) to the Tenants advising them of the change of ownership and
directing them to pay Rent and other charges under their respective Leases as
directed by Buyer; and (iii) to each Party to each of the Service Contracts
advising of the transfer and assignment of Seller's interest in the Contracts
to Buyer and directing that future inquiries be made directly to Buyer.
28
32
5.3 Foreign Investors. If Seller fails to deliver the FIRPTA
Certificate (as provided in Section 2.3(b)(ix)), to Buyer and TEM prior to or
at the Close of Escrow, then the transaction shall be completed at the Close of
Escrow, but TEM shall withhold ten percent (10%) of the "amount realized" (as
set forth in the Regulations) by Seller and transmit to the appropriate
Internal Revenue Service Center, all in accordance with said Section 1445 and
the Regulations pursuant thereto. If Seller provides TEM with such executed
certificate or notice prior to or at the Close of Escrow, then no such
withholding shall occur.
5.4 Mortgagee Estoppel Certificate. On or before the
Closing Date, Seller shall furnish to TEM and Buyer, an estoppel certificate
and consent to transfer completed by Mortgagee, on the form attached hereto and
incorporated herein as Exhibit "Z" (the "Mortgagee Estoppel"). Seller shall
use its best efforts to obtain and deliver the Mortgagee Estoppel. If Seller
has not obtained the Mortgagee Estoppel from Mortgagee within the time period
set forth herein, TEM shall have the right, at TEM's sole option, to terminate
this Agreement by written notice to Seller, and thereupon this Agreement shall
immediately terminate and be of no further force or effect and the Deposit
together with all interest accrued thereon shall be immediately returned to
TEM.
6. OPERATION OF PROPERTY.
6.1 Access to and Information Concerning the Property and
Consulting. Seller shall, between the date hereof and the Close of Escrow,
allow TEM, its agents and attorneys access to the Property for purposes of
inspecting the same or any part thereof at any time as they shall reasonably
request, and furnish to TEM, its agents and attorneys any and all information
in Seller's control regarding the Property and its operation that TEM, its
agents and attorneys shall reasonably request from time to time.
6.2 Leasing of the Property. Prior to the Close of Escrow,
Seller shall not terminate, amend or extend existing Leases, except with
respect to the pending leases (the "Pending Leases") a schedule of which is
attached hereto as Exhibit "R" in accordance with terms approved by TEM, or
enter into new leases or lease extensions without the approval of TEM.
Approval or disapproval shall be given within five (5) business days of TEM's
29
33
receipt of a proposal from Seller. A failure of TEM to respond within such
five (5) Business Day period shall be deemed approval. To the extent approved
by TEM, Seller agrees to promptly deliver to TEM true and complete copies of
any lease amendments, lease extensions, lease termination agreements and new
leases when fully executed. Seller shall at Seller's sole expense, satisfy in
full all lease commissions, tenant allowances or monetary concessions and
complete all alterations or other work required to be performed by Seller under
the Leases (as shown on the Rent Schedule) or the Pending Leases.
6.3 Possession. Buyer shall have the non-exclusive right to
possession of the Property as of the Close of Escrow.
6.4 Conduct of Business Pending Closing. From the date
hereof until the Closing, Seller shall (a) use reasonable best efforts to
maintain, for the benefit of TEM and Buyer following the Closing, the goodwill
of Tenants, prospective tenants, vendors and other parties having business
relations with Seller; (b) pay its debts (or in good faith contest the same)
and perform its obligations as they become due; (c) maintain the Property in
the same manner and condition that exists on the date hereof, as such condition
shall be altered by reason of casualty, taking and/or normal wear and tear; (d)
without the express written consent of TEM, not (i) enter into a new reciprocal
easement or similar agreement or amend or modify, consent to the assignment of
or waive any material right under the REA, (ii) make any alterations to the
Property or enter into any new contracts or extend or renew or cancel any
Service Contract relating to capital expenditures, (iii) enter into any other
new contracts or extend, renew or cancel, consent to the assignment of or waive
any material right under any other Service Contract, except for contracts
executed in the ordinary and usual course and business and in accordance with
past practices and policies which can be terminated without penalty or payment
upon not more than thirty (30) days prior notice, (iv) sell, transfer,
exchange, further encumber or grant interests (including easements) in the
Property or any part thereof or engage in negotiations or discussions with, or
otherwise solicit or assist, any third party relating to the acquisition by
such third party of the Property or the equity interests in Seller, and (v)
otherwise take any action which could or would render inaccurate any of the
representations or warranties made by Seller in this
30
34
Agreement; and (e) otherwise operate the Property in the ordinary course
consistent with current practice.
6.5 Assistance Following Closing. From and after the
Closing, Seller shall provide reasonable assistance to TEM and Buyer in
connection with the preparation of financial statements and bills and the
adjustment of losses and claims and the enforcement or settlement of any such
claims. Without limiting the foregoing, Seller shall, upon the request of TEM
from time to time, provide signed representation letters with respect to
revenues and expenses of Seller if required under generally accepted accounting
practices to enable TEM's or Buyer's accountants to render an opinion on TEM's
or Buyer's financial statements.
7. TITLE AND WARRANTIES.
7.1 Seller's Representations and Warranties. Seller
hereby represents, warrants and covenants to TEM and Buyer as follows:
(a) Seller has full power and authority to enter
into and perform this Agreement in accordance with its terms; Seller is a
general partnership duly organized, validly existing and in good standing under
the laws of the State of Nevada, and to the best of Seller's knowledge, it has
made all filings and recordings necessary to exist, operate and do business
under all presently applicable Governmental Regulations and has the full and
unrestricted power and authority, to own, operate and lease its properties, to
carry on its business as currently conducted and to execute and deliver this
Agreement and any other instruments to be delivered pursuant hereto, and to
perform all of its obligations under this Agreement and any other instruments
to be delivered pursuant hereto.
(b) To the best of Seller's knowledge and belief,
there are currently no defaults or any acts or events which, with the passage
of time or giving of notice or both, could become defaults under the First
Note, or the Second Note.
(c) Except as otherwise disclosed on the Schedule
of Reports and Studies attached hereto as Exhibit "S", Seller has no knowledge
of any notice, order or directive of any Authorities
31
35
that any work of repair, maintenance, or improvement be performed on the
Property.
(d) Except as otherwise disclosed on the
Schedules of Regulatory Compliance attached hereto as Exhibit "T" ("Regulatory
Compliance") or on Exhibit "S", Seller has received no notice from any
Authorities, any board of fire underwriters, improvement association, or
architectural committee relating to defects in the improvements on the
Property, relating to noncompliance with any applicable building code, laws,
regulations or restrictions applicable to the Property that has not been
corrected, or relating to any threat of impending condemnation.
(e) Seller has received no notice from any
Authorities of any pending or contemplated condemnation or change of zoning
affecting the Property.
(f) To the best of Seller's knowledge, the Rent
Schedule provided is a complete and correct list of all leases, tenancies, and
other rights of occupancy or use for any portion of the Property in effect on
the date of this Agreement and all of the tenant leases are the result of bona
fide arm's-length negotiations between the parties.
(g) Except for the completion of tenant
improvements under Leases which Seller is obligated to complete and for
budgeted repair and maintenance for the Property, from and after the Effective
Date, Seller will not authorize the Manager to (i) perform any grading or
excavation, construction, or removal of any improvements, or make any other
change or improvement upon or about the Property; (ii) create or incur, or
suffer to exist, any mortgage, lien, pledge, or other encumbrances in any way
affecting the Property without TEM's written approval; and (iii) commit any
waste or nuisance upon the Property. Seller will, maintain and keep the
Property in neat condition and will observe all laws, ordinances, regulations,
and restrictions affecting the Property and its use, until the Close of Escrow.
(h) Except as otherwise disclosed on the
Environmental Disclosures attached hereto as Exhibit "U", and the Asbestos
Surveys and Reports a listing of which is attached
32
36
hereto as Exhibit "V", (i) to the best of Seller's knowledge, Seller has fully
complied with the Federal Resources Conservation and Recovery Act ("RCRA"), the
Federal Comprehensive Environmental Response Compensation and Liability Act
("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of
1986 ("▇▇▇▇"), the Federal Insecticide, Fungicide, and Rodenticide Act
("FIFRA"), 7 U.S.C. Section 136 et. seq.; the Hazardous Materials
Transportation Act (49 U.S.C. Section 1801 et seq.); the Toxic Substance
Control Act ("TSCA"), 15 U.S.C. Section 2601 et. seq.; the Atomic Energy Act,
42 U.S.C. Section 2011 et. seq.; the Clean Water Act (the "Clean Water Act"),
33 U.S.C. Section 1251 et. seq.; and the Clean Air Act (the "Clean Air Act"),
42 U.S.C. Section 7401 et seq. and all comparable federal and/or state laws,
implementing federal and/or state regulations and local ordinances (hereafter
"Applicable Environmental Laws") and (ii) to the best of Seller's knowledge and
belief, the Property does not contain contaminants, toxic or hazardous
substances or materials within the meaning of the Applicable Environmental
Laws. Seller hereby discloses and Buyer acknowledges that some components of
the Improvements contain asbestos material. Seller has not received any
written notice from any governmental unit or other person that (i) it or the
Property is not in compliance with any Applicable Environmental Laws, (ii)
there are administrative, regulatory or judicial proceedings pending or
alleging any violation of any Applicable Environmental Laws, or (iii) there is
liability or claims under any applicable Environmental Laws. Except as set
forth on Exhibit "U", Seller has not installed any underground or above ground
storage tanks on, under or about the Property and, to Seller's knowledge, no
such tanks are located on, under or about the Property.
(i) Except as disclosed on the schedule of
pending litigation attached hereto as Exhibit "W" ("Pending Litigation"),
Seller has received no written notice of any threatened litigation and to the
best of Seller's knowledge, there is no litigation pending not covered by
public liability insurance that might adversely affect the value or the use or
operation of the Property for its intended purpose or the ability of Seller to
perform its obligations under this Agreement. Seller shall notify TEM promptly
of any such litigation of which Seller becomes aware.
33
37
(j) Seller is not a "foreign person" within the
meaning of Section 1445(f)(3) of the Code.
(k) Seller has not filed or been the subject of
any filing of a petition under the Federal Bankruptcy Law or any federal or
state insolvency laws or laws for composition of indebtedness or for the
reorganization of debtors.
(l) The execution, delivery and performance of
this Agreement by Seller have been duly and validly authorized by all necessary
action on the part of Seller and Seller's general partners. This Agreement has
been, and the Seller Closing Documents will be, duly executed and delivered by
Seller. This Agreement constitutes, and when so executed and delivered the
Seller Closing Documents will constitute, the legal, valid and binding
obligations of Seller, enforceable against Seller in accordance with their
respective terms.
(m) None of the execution, delivery or
performance of this Agreement by Seller does or will, with or without the
giving of notice, lapse of time or both, violate, conflict with, constitute a
default, result in a loss of rights, acceleration of payments due or creation
of any Lien upon the Property or require the approval or waiver of or filing
with any person or entity (including without limitation any Authorities) under
(i) the organizational documents of Seller or its general partners or, any
agreement, instrument or other document to which Seller or its general partners
is a party or by which it is bound or (ii) any judgment, decree, order,
statute, injunction, rule, regulation or the like of any Authorities applicable
to Seller or its general partners.
(n) The REA constitutes the only reciprocal
easement agreements or operating agreements encumbering the Property. A true
and complete copy of the REA has heretofore been furnished to Buyer, together
with each written modification thereof and supplement thereto. Seller has not
made any oral promises or agreements amending or modifying the REA with any REA
Party.
(i) The REA is valid and in full force
and effect. As of the Closing Date, no interest in the REA will be assigned to
any party other than Buyer, or otherwise pledged or encumbered in any way.
34
38
(ii) None of the parties to the REA has
made any written claim which has been received by Seller (A) that Seller has
defaulted in performing any of its obligations under the REA which has not
heretofore been cured, (B) that any condition exists which with the passage of
time or giving of notice, or both, would constitute any such default, (C) that
such REA party is entitled to any reduction in, refund of, or counterclaim or
offset against, or is otherwise disputing, any Additional Rent or other charges
paid, payable or to become payable by such REA party, (D) that such REA party
is entitled to cancel its REA or to be relieved of its operating covenants
thereunder, or (E) that there is a violation of any of the covenants,
conditions or restrictions contained in such REA.
(o) To the best of Seller's knowledge, Exhibit
"E" which was prepared by the Manager contains a true and complete list of all
Service Contracts, including all modifications thereof. There has been no
material default (without giving effect to any notice and cure rights) by
Seller under any Service Contract or any written claim received by Seller of
any such default by any party thereto, which has not heretofore been cured
except as set forth on Exhibit "E". A true and complete copy of each Service
Contract, together with any amendments or supplements thereto, has been
delivered or made available to TEM by Manager.
(p) To the best of Seller's knowledge, Exhibit
"T" contains a list of all permits and licenses currently maintained by Seller
with respect to the Property. Seller has not received any written notice of
violation from any Authorities that has not been cured or otherwise resolved to
the satisfaction of such Authority. To Seller's knowledge, the permits and
licenses listed on Exhibit "T" are all of the licenses and permits which are
required for the present use of the Property.
(q) The term "knowledge", when used in this
Agreement, shall mean only such information as has actually been communicated
to, or learned by, the employees or officers of the entity to whose actual
knowledge reference is made (without imputing to those employees or officers,
or to that entity, the knowledge of any other person or entity). In
furtherance to the sale of the Property, Seller obtained and is familiar with
the
35
39
due diligence materials, including the studies and reports referenced therein,
described in Exhibits "O" and "P".
(r) The representations and warranties set forth
in this Article shall be continuing and shall be true and correct on and as of
the date of Close of Escrow with the same force and effect as if made at that
time, and all such representations and warranties shall survive the Close of
Escrow for one (1) year. If, prior to the Closing, Seller becomes aware of any
fact or circumstance that would materially change a representation or warranty
of Seller in this Agreement, then Seller shall promptly give written notice of
such changed fact or circumstance to TEM. If, prior to Closing, upon Seller's
notice or otherwise, TEM becomes aware of: any material failure of any
condition to the obligations of TEM to close the transactions contemplated in
this Agreement; the untruth or inaccuracy of, or facts or circumstances which
would change materially, any representation or warranty of Seller in this
Agreement; or the failure of Seller to comply with any provision of this
Agreement; then TEM shall have the sole option of: (i) waiving such condition,
breach of warranty, or breach, and proceeding to Close the transactions
contemplated in this Agreement; (ii) subject to Seller's agreement and
concurrence agreeing with Seller to adjust the terms of this Agreement to
compensate TEM for such change; or (iii) terminating this Agreement and
receiving the return of the Deposit as TEM's sole remedy prior to Closing.
7.2 TEM's Warranties. TEM hereby represents, warrants
and covenants to Seller as follows:
(a) TEM is a limited partnership validly existing
and in good standing under the laws of the State of Delaware with full right,
power and authority to execute, deliver and perform this Agreement.
(b) The execution, delivery and performance by
TEM of this Agreement have been duly and validly authorized by all requisite
action on the part of TEM. This Agreement has been duly executed and delivered
by TEM. This Agreement constitutes the legal, valid and binding obligations of
TEM, enforceable against it in accordance with its terms.
36
40
(c) None of the execution, delivery or
performance of this Agreement by TEM does or will, with or without the giving
of notice, lapse of time or both, violate, conflict with, constitute a default
or result in a loss of rights under or require the approval or waiver of or
filing with any person (including without limitation any governmental body,
agency or instrumentality) under (i) the limited partnership agreement of TEM
or any material agreement, instrument or other document to which TEM is a party
or by which TEM is bound or (ii) any judgment, decree, order, statute,
injunction, rule, regulation or the like of a governmental unit applicable to
TEM.
7.3 Buyer's Warranties. Buyer hereby represents, warrants
and covenants as follows:
(a) Buyer is a general partnership duly
organized, validly existing and in good standing under the law of the State of
Texas, and to the best of Buyer's knowledge, has made all filings and
recordings necessary to exist, operate and do business under all presently
applicable Governmental Regulations and has the full and unrestricted power and
authority, corporate or otherwise, to own, operate and lease its properties, to
carry on its business as currently conducted and to execute and deliver this
Agreement and any other instruments to be delivered pursuant hereto, and to
perform all of its obligations under this Agreement and any other instruments
to be delivered pursuant hereto.
(b) The execution, delivery and performance by
Buyer of this Agreement and all other instruments required to be delivered
pursuant hereto, the fulfillment of and compliance with the respective terms
and provisions hereof and thereof, and the due consummation of the transaction
contemplated hereby, have been duly and validly authorized by all necessary
partnership action (all of which actions are in full force and effect), and do
not: (1) require any consent or approval of any partner, lender, shareholder,
creditor, investor, judicial or administrative body, Authority or other party
which has not already been obtained; or (2) conflict with, or result in any
breach of, or constitute a default under, any presently applicable Governmental
Regulation, bond, note, or other evidence of indebtedness, or under any
contract, indenture, mortgage, deed of trust, loan, lease, partnership
agreement, articles of
37
41
incorporation, bylaws, shareholder agreement or any other agreement or
instrument to which Buyer is a party or by which Buyer or any of Buyer's
properties may be bound or affected.
(c) Buyer's representations and warranties
contained herein are and will be true and correct as of the Close of Escrow.
8. ASSIGNMENT.
8.1 No Other Assignment. Neither Buyer, TEM nor Seller shall
assign all or any part of this Agreement or any of their rights or obligations
hereunder, or any interest herein, whether by operation of law or otherwise,
without the prior written consent of Seller, TEM or Buyer, as applicable, and
any such assignment contrary to the terms hereof shall be null and void and of
no force or effect. Except as the other party may otherwise agree in writing,
in no event shall any assignment by TEM, Buyer or Seller of all or any part of
this Agreement or any of their rights or obligations under this Agreement,
whether before or after the Closing, release TEM, Buyer or Seller, as the case
may be, from any of their respective liabilities or obligations hereunder.
9. BROKERAGE COMMISSIONS.
9.1 Mutual Representations. Each party represents to the
other that no brokers except ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Realty have been involved in this
transaction. Seller shall pay any commissions owed to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Realty.
It is agreed that if any claims for brokerage commissions or finder's fees or
like payment arise out of or in connection with the transaction provided
herein, and in the event any claim is made, all such claims shall be handled
and paid by the party whose actions or alleged commitment form the basis of
such claim. It is further agreed that each party whose actions or alleged
commitment form the basis of a claim agrees to indemnify and hold harmless the
other party from and against any and all claims or demands with respect to the
brokerage fees or agent's commissions or other compensation asserted by any
person, firm, or corporation in connection with this Agreement or the
transactions contemplated hereby.
38
42
10. NOTICES.
Any notices given under this Agreement shall be in writing and
shall be served either personally or delivered by first class or express U.S.
mail with postage prepaid, return receipt requested pursuant to registered or
certified mail, or by nationally recognized overnight commercial courier
service with charges prepaid. Notices may also effectively be given by
transmittal over electronic transmitting devices if the party to whom the
notice is being sent has a receiving device in its office, and provided a
complete copy of the notice shall also be served either personally or in the
same manner as required for a mailed notice. Notices shall be deemed received
at the earlier of actual receipt or one (1) day following deposit in U.S. mail
with postage prepaid or with a nationally recognized overnight commercial
courier service with charges prepaid. Notices shall be directed as follows:
If to Seller: Atlantic Freeholds II
▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ Limited
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇▇▇ Radovsky ▇▇▇▇▇▇▇ & Share LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
If to TEM: Town East Mall, L.P.
c/o General Growth Properties, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
39
43
Copy to: ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
Two North La Salle, Suite 2200
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
If to Escrow Chicago Title Insurance Company
Holder: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
11. CONDEMNATION AND DESTRUCTION.
11.1 Eminent Domain or Taking. If, prior to the Close of
Escrow, any portion of the Property is taken or if the access to the Project is
reduced or restricted, by eminent domain or otherwise (or is the subject of a
pending, threatened or contemplated taking which has not been consummated), TEM
shall have the option, in TEM's sole and absolute discretion, to terminate this
Agreement upon written notice to Seller given not later than ten (10) business
days after TEM is notified of such taking (and if necessary, the Closing Date
shall be extended by the number of days necessary to provide TEM such ten (10)
Business Day period). If TEM elects to terminate this Agreement, neither party
shall have any further rights or obligations hereunder, except the payment of
title and escrow cancellation costs, which shall be borne equally by Seller and
TEM. If TEM does not elect to terminate this Agreement, all awards for the
taking by eminent domain which accrue to Seller shall be paid to TEM and the
parties shall proceed to the Closing pursuant to the terms hereof, without
modification of the terms or Contribution Price of this Agreement, provided
that TEM shall accept the Property "AS IS" and "WITH ALL FAULTS" insofar only
as such condemnation is concerned, and all of Seller's covenants,
representations and warranties hereunder shall be deemed modified accordingly.
Unless or until this Agreement is terminated, Seller shall not take any action
with respect to any eminent domain proceeding without the prior written consent
of TEM which consent shall not be unreasonably withheld or delayed.
40
44
11.2 Fire or Casualty. Prior to the Closing, and
notwithstanding the pendency of this Agreement, the entire risk of loss or
damage by fire or other casualty shall be borne as set forth in this Section
11.2. If, prior to the Closing, any part of the Property is damaged or
destroyed by earthquake, flood, landslide, fire or other casualty, Seller shall
immediately notify TEM of such fact. If such damage or destruction is
"material", either TEM or Seller shall have the option to terminate this
Agreement upon written notice to the other party given not later than thirty
(30) days after receipt of Seller's notice of such damage or destruction (and,
if necessary, the Closing Date shall be extended by the number of days
necessary to provide Buyer such thirty (30) day period). For purposes hereof,
"material" shall be deemed to be any uninsured damage or destruction to the
Property in excess of Two Hundred Fifty Thousand Dollars ($250,000.00), and any
insured damage or destruction to the Property where the cost of repair or
replacement is estimated to be Five Hundred Thousand Dollars ($500,000.00) or
more. If either TEM or Seller elects to terminate this Agreement, neither
party shall have any further rights or obligations hereunder except the payment
of title and escrow cancellation charges which shall be borne equally by TEM
and Seller. If neither TEM or Seller elects to terminate this Agreement, or if
the damage or destruction is not material, this Agreement shall not terminate
but Seller shall be entitled to the proceeds of any insurance maintained by or
on behalf of Seller and Seller shall repair or restore the damage or
destruction to the same condition as existed prior to the casualty as soon as
reasonably practical but in no event more than 60 days after the casualty, and
upon the completion of such repair or restoration the parties shall proceed to
the Closing pursuant to the terms hereof without any adjustment of the Purchase
Price.
12. DEFINED TERMS.
12.1 Definitions. The following terms shall have the
respective meanings assigned to them:
(a) Additional Rental - means such sums and
charges payable by the Tenant's pursuant to the Leases (other than Minimum Rent
and Percentage Rent) including without limitation, expense reimbursement;
operating cost pass-throughs; utility charges; common area maintenance charges;
charges payable
41
45
under the REA; administrative charges, real estate and privilege taxes; Roof
Repair Fund and insurance cost reimbursements.
(b) Affiliate - means with respect to any
specific entity or natural person, any firm, corporation, partnership,
association, trust or other entity which is controlled by, under the common
control of or subject to the control of such specific entity or natural person.
For purposes hereof, the term "control" shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of any such entity, or the power to veto major policy decisions of any
such entity, whether through the ownership of voting securities, by contract or
otherwise.
(c) Authorities - means all federal, state,
county and local governmental and quasi-governmental bodies, boards,
commissions, agencies and courts having jurisdiction over the Property
including, without limitation, the City of Mesquite, the County of Dallas, and
the State of Texas.
(d) Business Day - means the days (other than
Saturday or Sunday) on which federally insured national banking associations
are required to be open for business in Dallas County, Texas.
(e) Improvements - mean, in addition to its
definition in the Recital of Facts, all buildings, fixtures, structures,
streets, roadways, sidewalks, walkways, parking areas, storm drainage
facilities, utility systems (including sanitary sewer, natural gas, domestic
and fire protection water, electrical, telephone and cable television systems)
and any other facilities or improvements situated on the Real Property or
constructed as part of the Improvements. The term "Improvements" also means
all rights, titles and interests appurtenant to the Real Property, including
rights and obligations under any REA and rights to all streets, alleys,
easements and rights of way, in, on, across, in front of and abutting or
adjoining the Real Property.
(f) Leases - means all leases, licenses, guaranty
agreements, rental agreements or occupancy agreements and all amendments,
modifications and supplements thereto, executed by either (i) unilaterally by
Seller; or (ii) Seller and Tenant; or
42
46
(iii) a third party guarantor of a Lease, relative to occupying space within
the Improvements (together with all rents, issues and profits thereunder).
(g) Minimum Rent - means all base rent, minimum
rent or basic rent payable in fixed installments for stated periods by Tenants
under the Leases.
(h) Official Records - means the Real Property
Records of Dallas County, Texas.
(i) Percentage Rent - means rentals which are
expressed as a fixed percentage or percentages of the gross receipts or gross
sales in excess of the stated "break point" of the Tenants under the Leases.
(j) Permitted Encumbrances - means and shall
include (i) the Permitted Exceptions; and (ii) matters affecting the Property
set forth in the Title Commitment and approved, or deemed approved, by Buyer
pursuant to Section 2.3(f).
(k) Personal Property - means, in addition to its
definitions in the Recitals of Fact, all fixtures, food court furniture and
fixtures, equipment, appliances, carpet, drapes, maintenance equipment and
tools, all other machinery, landscaping, planting and foliage and furniture and
personal property of every kind or character owned by the Seller and located in
or on or used in connection with the Real Property or the Improvements or
operations thereon, including the personal property described on the Personal
Property Inventory. The term "Personal Property" shall be deemed to exclude
all property owned by the Tenants and by the Anchors.
(l) Personal Property Inventory - means the list
attached as Exhibit "D".
(m) Proration Date - means 11:59 p.m. on the date
preceding the Closing Date, such that Buyer is deemed to have owned the
Property the entire day upon which the Closing occurs.
(n) REA - shall have the meaning set forth
otherwise herein and shall also include all other agreements between the
"Developer" or "Operator" thereunder and any Anchor
43
47
pertaining thereto, such other agreements to include, but not be limited to,
those listed on Exhibit "B".
(o) Real Property - means, in addition to the
definition in the Recital of Facts, the real property described in Exhibit "A"
together with all and singular the rights pertaining to such real property,
including, without limitation, any right, title and interest of Seller, if any,
in and to all adjacent streets, roads, alleys, underground tunnels, easements,
licenses, and rights-of-way, whether such property is owned or claimed by deed,
limitations, or otherwise, and whether such real property is located inside or
outside the metes and bounds description contained in Exhibit "A", located
within the Survey.
(p) Rentals - means, collectively, all Minimum
Rent, Additional Rentals, Percentage Rent and other sums and charges payable by
the Tenants under the Lease. Rentals shall not include Security Deposits
unless and until such Security Deposits are forfeited.
(q) Security Deposits - means all security
deposits, Rentals prepaid for a period which is more than thirty (30) days in
advance, access card or key deposits, cleaning fees and other deposits (plus
any interest accrued thereon) paid by Tenants to Seller pursuant to the Leases.
(r) Title Company:
Chicago Title Insurance Company
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(s) Title Underwriters - cumulatively the
following title insurance underwriters with their indicated amounts of title
insurance coverages:
44
48
UNDERWRITER AMOUNT OF COVERAGE
Chicago Title Insurance Company $_____________ (primary
liability)
_______ Title Insurance Company $_____________ (reinsurance)
_______ Title Insurance Company $_____________ (reinsurance)
_______ Title Insurance Company $_____________ (reinsurance)
12.2 Use of Defined Terms. The definitions set forth in
Section 12.1 are intended to supplement and be consistent with the defined
terms set forth in the Recitals of Fact and in the other Sections hereof, but
in the event of any conflict between defined terms in the Recitals of Fact or
the other Sections and the definitions in Section 12.1, the definitions in
Section 12.1 shall prevail. Any defined terms used in the plural shall refer
to all members of the relevant class and any defined terms used in the singular
shall refer to any number of members of the relevant class. Any reference to
this Agreement or any Exhibits hereto and any other instruments, documents and
agreements shall include this Agreement, Exhibits and other instruments,
documents and agreements as originally executed or existing and as the same may
from time to time be supplemented, modified or amended.
12.3 Accounting Terms. All accounting terms not specifically
defined in this Agreement shall be construed in conformity with, and all
financial data required by this Agreement to be submitted shall, unless
otherwise expressly stated, be prepared in conformity with generally accepted
accounting principles, applied on a consistent basis.
13. MISCELLANEOUS.
13.1 Additional Actions and Documents. Each of the parties
hereto hereby covenants to take or cause to be taken such further actions, to
execute, deliver, and file or cause to be executed, delivered, and filed such
further documents and instruments, and to obtain such consents, as may be
necessary or as may be reasonably required in order to effectuate fully the
45
49
purposes, terms, and conditions of this Agreement, whether before, at, or after
the Closing.
13.2 Limitations on Benefits. It is the explicit intention
of the parties hereto that no person or entity other than the parties hereto
and their permitted successors and assigns is or shall be entitled to bring any
action to enforce any provision of this Agreement against any of the parties
hereto, and the covenants, undertakings and agreements set forth in this
Agreement shall be solely for the benefit of, and shall be enforceable only by,
the parties hereto or their respective successors and assigns as permitted
hereunder.
13.3 Cumulative Remedies. Prior to or following the Closing,
each and every one of the rights, benefits and remedies provided to TEM or
Buyer by this Agreement, or any instrument or documents executed pursuant to
this Agreement, are cumulative, and shall not be exclusive of any other of said
rights, remedies and benefits allowed by law or equity to TEM or Buyer
including the right to bring an action for specific performance. From and
after the Closing, each and every of the rights, benefits and remedies provided
to Seller by this Agreement, or any other documents or agreements delivered at,
or in connection with, the Closing shall be cumulative and shall not be
exclusive of any other of said rights, remedies and benefits allowed under this
Agreement or such other documents or agreements; provided, however, it being
expressly agreed that Seller's sole remedy in the event of a breach of this
Agreement by TEM or Buyer shall be to receive the Deposit as liquidated damages
and not as a penalty.
13.4 Pronouns; Time. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine, neuter, singular or
plural, as the identity of the person or entity may require. If any period or
time set forth in this Agreement ends or occurs on a day which is not a
Business Day, then such period or time shall instead end on the next
immediately following Business Day.
13.5 Exhibits. The Exhibits and Schedules enumerated herein
are attached hereto. When attached to this Agreement, the Exhibits and
Schedules are hereby made a part of this Agreement as fully as if set forth in
the text hereof.
46
50
13.6 Headings. The title and headings of the various
Sections hereof are intended solely for means of reference and are not intended
for any purpose whatsoever to modify, explain or place any construction on any
of the provisions of this Agreement.
13.7 Invalidity. If any of the provisions of this Agreement
or the application thereof to any persons or circumstances shall, to any
extent, be invalid or unenforceable, the remainder of this Agreement by the
application of such provision or provisions to persons or circumstances other
than those as to whom or which it is held invalid or unenforceable shall not be
effected thereby, and every provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
13.8 Attorneys' Fees. In the event of any litigation between
the parties hereto to enforce any of the provisions of this Agreement or any
right of either party hereto, the unsuccessful party to such litigation agrees
to pay the successful party all costs and expenses, including reasonable
attorneys' fees, incurred hereby by the successful party, all of which may be
included in and as part of the judgment rendered in such litigations.
13.9 Entire Agreement. The terms of this Agreement are
intended by the parties as a final expression of their agreement with respect
to such terms as are included in this Agreement and may not be contradicted by
evidence of any prior or contemporaneous agreement. The parties further intend
that this Agreement constitutes the complete and exclusive statement of its
terms and that no extrinsic evidence whatsoever may be introduced in any
judicial proceedings, if any, involving this Agreement. No provision of this
Agreement may be amended or added to except by an agreement in writing signed
by the parties hereto or their respective successors in interest. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Texas.
13.10 Successors. All the terms, covenants and conditions
hereof shall be binding upon and inure to the benefit of the heirs, executors,
administrators, successors and assigns of the parties hereto.
47
51
13.11 Counterparts. This Agreement may be executed in
several counterparts each of which shall be an original, but all of such
counterparts shall constitute one such Agreement.
13.12 Confidentiality. Until Closing, TEM and its partners,
attorneys, agents, employees and consultants will treat the information
disclosed to it by Seller and marked as confidential information, giving it the
same care as TEM's own confidential information, and make no use of any such
confidential information not independently known to TEM except in connection
with the transactions contemplated hereby. In the event of any termination of
this Agreement in accordance with its terms, TEM shall promptly return copies
of all such confidential information to Seller. In addition, the parties shall
agree to any press release to be issued regarding this transaction, and except
as required by applicable law, neither party shall issue any such release or
make any statement to the media without the other party's consent, which shall
not be unreasonably withheld.
13.13 Force Majeure. The time for performance of either
TEM's Buyer's or Seller's obligations hereunder shall be extended for a period
equal to any delays in the performance of that party's obligations caused by
acts of God, labor disputes, strikes, weather conditions, riots, storms, delays
or unavailability of supplies, breach by the Seller's contractor or
subcontractors, or any other causes beyond Buyer's or Seller's reasonable
control, as the case may be (collectively, "Force Majeure Events"); provided,
however, lack of funds or willful acts of a party shall not constitute a Force
Majeure Event hereunder. Further, it shall be a condition to any extension of
the time for a party's performance hereunder that such party notify the other
party within five (5) Business Days following the occurrence of the Force
Majeure Event. In the event any such delays shall cause or are reasonably
likely to cause the Closing Date to extend six (6) months beyond December 31,
1997, then either party shall have the right to terminate this Agreement.
13.14 Time of the Essence. Time is of the essence in this
Agreement.
13.15 Indemnification by Seller. From and after the Closing,
Seller shall indemnify, defend and hold harmless Buyer, TEM and their
respective Affiliates, members, partners,
48
52
employees, representatives and agents, and their respective successors and
assigns (collectively, the "INDEMNIFIED BUYER PERSONS") from and against any
and all claims, actions, suits, demands, losses, damages, liabilities,
obligations, judgments, settlements, awards, penalties, costs or expenses,
including, without limitation, reasonable attorneys' fees and expenses
("Losses") incurred or suffered by any Indemnified Buyer Person that results
from, relates to or arises out of (a) claims (excluding, however, claims that
are actually known to TEM or the key employees of Manager (as hereinafter
defined - "Key Employees") prior to the Close of Escrow) made by any Tenant or
Anchor under the Leases, any Party to the REA under the REA, or by any Party
under those Contracts assigned to Buyer, that relate to any actions or events
first occurring, or obligations first accruing, prior to the Closing Date, (b)
any event, occurrence or accident at any time prior to the Closing Date
relating to the Property excluding events, occurrences or accidents not
covered by insurance and actually known to TEM or the Key Employees of Manager,
or (c) the Pending Claims as are more particularly described on Exhibit AA
attached hereto. The Key Employees are ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇. As used in this Section 13.15,
"actually known to TEM or the Key Employees of Manager" shall mean actual
knowledge of TEM or the Key Employees of Manager, but only with respect to
information acquired by TEM or the Key Employees after December 22, 1995. This
Section 13.15 shall survive the Close of Escrow. Claims against Seller or the
Property arising from CAM charges, Rentals, any construction contract or
service agreement or operations expenses shall be borne by Seller regardless of
any knowledge of TEM or the Key Employees.
13.16 Breach of Contract. Notwithstanding anything to the
contrary contained in this Agreement, in the event of any breach or inaccuracy
of any representation or warranty made by Seller in this Agreement or in the
Seller Closing Documents, or in the event of any breach or non-fulfillment by
Seller of any of the covenants or agreements of Seller contained in this
Agreement or the Seller Closing Documents, Buyer or TEM shall have the right,
in addition to any other rights or remedies provided in this Agreement, to
bring an action for breach of contract and for damages against Seller.
49
53
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date set forth below and is effective as of the latter.
SELLER:
ATLANTIC FREEHOLDS II,
a Nevada general partnership
By: GROSVENOR INTERNATIONAL
(ATLANTIC FREEHOLDS) LIMITED,
a Nevada corporation,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Its: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Its: Senior Vice President
50
54
BUYER:
TOWN EAST MALL PARTNERSHIP, a Texas
general partnership
By: TOWN EAST MALL, L.P., a Delaware limited partnership,
its general partner
By: TOWN EAST MALL, INC.,
a Delaware corporation,
its general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
----------------------
Title: Vice President
---------------------
By: ATLANTIC FREEHOLDS II, a Nevada
general partnership,
its general partner
By: GROSVENOR INTERNATIONAL
(ATLANTIC FREEHOLDS) LIMITED,
a Nevada corporation,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Title: Director
---------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
----------------------
Title: Senior Vice President
51
55
TEM:
TOWN EAST MALL L.P., a Delaware
limited partnership
By: Town East Mall, Inc., a
Delaware corporation, its
general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
------------------------
Title: Vice President
-----------------------
52