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EXHIBIT 2.1
AGREEMENT OF PURCHASE AND SALE
OAK VIEW MALL
BY AND BETWEEN
OAK VIEW MALL CORPORATION,
A DELAWARE CORPORATION,
SELLER
AND
OAK VIEW MALL L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY,
PURCHASER
DATED: JULY 27, 1999
AGREEMENT OF PURCHASE AND SALE
Oak View Mall
Omaha, Nebraska
THIS AGREEMENT OF PURCHASE AND SALE ("Agreement") is made and entered into
this 27th day of July, 1999 by and between OAK VIEW MALL CORPORATION, a Delaware
corporation ("Seller"), having an address of c/▇ ▇▇▇▇▇▇▇ Capital Management LLC,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; facsimile number (▇▇▇) ▇▇▇-▇▇▇▇, and OAK VIEW MALL L.L.C., a
Delaware limited liability company ("Purchaser"), having an address of c/o
General Growth Properties, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇; facsimile number (▇▇▇) ▇▇▇-▇▇▇▇.
RECITALS
Seller is the owner of certain parcels of real estate in Omaha, Nebraska,
legally described on Exhibit A attached hereto, and all buildings, improvements,
fixtures and installations thereon (excluding, however, the buildings,
improvements, fixtures and installations on the Outlot Property, as defined
below, which are owned by the lessees thereof). Such parcels, buildings,
improvements, fixtures and installations owned by Seller, together with any and
all easements, rights-of-way, licenses and appurtenances thereto are hereinafter
collectively referred to as the "Real Property." The Real Property contains
approximately 399,000 leasable square feet and includes: (A) approximately
249,600 square feet of space for in-line mall stores, (B) a building leased for
an approximately 149,400 square feet "Younkers" store, and (C) two parcels of
land ground leased for a Village Inn restaurant and a Lone Star restaurant,
respectively (the "Outlot Property"). The Real Property is part of an enclosed
regional shopping mall, consisting of: (1) the Real Property and (2) the
buildings
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and adjoining parking areas owned by third parties and currently operated as
"Dillard's," "JC Penney" and "Sears" stores, respectively (the operators thereof
being hereinafter collectively referred to as the "Anchor Property Operators").
Subject to and on the terms and provisions of and for the considerations
set forth in this Agreement, Seller has agreed to sell, and Purchaser has agreed
to buy, the Property.
NOW, THEREFORE, the parties hereto hereby agree as follows:
Definitions. As used in this Agreement, the following terms have the
following meanings:
Closing. The closing of the purchase and sale transaction contemplated
herein.
Closing Date. As agreed between Seller and Purchaser, but no later than
September 14, 1999; provided, however, that Purchaser shall have the
one-time right (the "Extension Right") to extend the Closing Date to a
Monday, Tuesday, Wednesday or Thursday not later than September 28, 1999
by giving written notice to Seller of such extension not later than 10:00
a.m. (Chicago time) September 7, 1999 and by depositing with the Escrow
Company or Seller , as the case may be, the Additional ▇▇▇▇▇▇▇ Money as
described in Section 2.2 below.
Due Diligence Period. The period commencing on July 6, 1999 and ending at
5:00 p.m. (Chicago time) on August 16, 1999.
▇▇▇▇▇▇▇ Money Note. Shall have the meaning set forth in Section 2.2 below.
Escrow Company. Near North National Title Corporation, as agent for
Chicago Title Insurance Company.
Extension Right. Shall have the meaning set forth in the definition of
"Closing Date" above.
Intangible Personal Property. All logos, designs, tradenames, trademarks,
service marks, copyrights and other intellectual property used by Seller
in connection with the ownership and operation of the Property or any part
thereof, and the goodwill of the business appurtenant thereto, excluding,
however, the name of "Oak View Mall Corporation" when used alone or in
conjunction with other names.
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Property. Collectively, the Real Property, the Tangible Personal Property,
the Intangible Personal Property, the Service Contracts and the Lease
Documents (as hereinafter defined).
Proposal. The form of a "Proposal" whether an "Existing Proposal" as
defined in Section 5.8 herein or a "New Proposal" as defined in Section
15(a)(vi) hereof, which shall contain a description of the economic terms
(including all Leasing Costs (as hereinafter defined)) of any proposed
lease, amendment or cancellation along with any financial information on
the tenant in Seller's possession.
Service Contracts. All written: (i) service, maintenance, operating,
repair, supply, purchase, consulting, professional service, advertising,
promotion, public relations and other contracts and commitments (excluding
the Leases, any recorded documents and agreements and any property
management and leasing agreements) in any way relating to the Property or
any part thereof which shall survive the Closing hereunder and (ii)
equipment leases and all rights and options of Seller thereunder,
including rights to renew or extend the term or purchase the leased
equipment, relating to equipment or property located in or upon the Real
Property or used in connection therewith which shall survive the Closing
hereunder, in each case under (i) and (ii) above as identified on
Schedule 2.
Tangible Personal Property. Subject to the limitations set forth in
Section 3.2(g) hereof, all machinery, equipment, fixtures, furnishings,
plans, specifications, warranties and other tangible personal property and
related equipment situated in or upon or used in connection with the
operation or maintenance of the Real Property or any part thereof and all
replacements, additions or accessories thereto between the date hereof and
the Closing Date, including the items identified and described on Exhibit
A of Exhibit J, but excluding: (i) personal property owned by the property
manager or by tenants under the Leases, (ii) personal property demised by
any equipment leases (if any) described on Schedule 2, and (iii)
proprietary software (but including hard copies of all data, reports,
statements and other information relating to the ownership, operation,
maintenance or management of the Property, and including computer
maintenance programs). A list of all such Tangible Personal Property is
identified and described on Exhibit A of Exhibit J.
Title Company. Near North National Title Corporation, as agent for Chicago
Title Insurance Company.
Sale; Purchase Price.
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Subject to the terms and provisions hereof, Seller agrees to sell and
convey to Purchaser, and Purchaser agrees to purchase from Seller the Property.
The total purchase price (hereinafter called the "Purchase Price") to be
paid by Purchaser to Seller for the Property shall be One Hundred Twelve Million
and no/100 Dollars ($112,000,000.00). The Purchase Price shall be payable in the
following manner:
▇▇▇▇▇▇▇ MONEY. Purchaser shall, within two (2) business days after the
full execution and delivery of this Agreement by Purchaser and Seller, deposit
with the Escrow Company, as escrow agent, the amount (the "Initial ▇▇▇▇▇▇▇
Money") of Two Million and 00/100 Dollars ($2,000,000.00), and, in the event
that Purchaser elects to exercise the Extension Right, Purchaser shall,
concurrently with the delivery of the notice to Seller exercising such right,
deposit with the Escrow Company the additional sum (the "Additional ▇▇▇▇▇▇▇
Money") of Ten Million and 00/100 Dollars ($10,000,000.00) (the Initial ▇▇▇▇▇▇▇
Money and, if applicable, the Additional ▇▇▇▇▇▇▇ Money being hereinafter
collectively called the "▇▇▇▇▇▇▇ Money"), which ▇▇▇▇▇▇▇ Money shall be in the
form of a wire transfer of immediately available United States of America funds
(except as otherwise provided below). The ▇▇▇▇▇▇▇ Money shall be held and
disbursed by the Escrow Company acting as escrow agent pursuant to the ▇▇▇▇▇▇▇
Money Escrow Agreement in the form of Exhibit B attached hereto which the
parties have executed simultaneously with this Agreement and subject to the
terms of this Agreement. The ▇▇▇▇▇▇▇ Money shall be invested in a federally
issued or insured interest bearing instrument with any interest accruing thereon
to be paid or credited to Purchaser. If the sale hereunder is consummated in
accordance with the terms hereof, the ▇▇▇▇▇▇▇ Money and any interest thereon
shall be applied to the Purchase Price to be paid by Purchaser at the Closing.
In the event of a default hereunder by Purchaser or Seller, the ▇▇▇▇▇▇▇ Money
shall be applied as provided herein. If this Agreement is terminated in
accordance with the terms of this Agreement and Purchaser is entitled to the
▇▇▇▇▇▇▇ Money, the ▇▇▇▇▇▇▇ Money and all interest accrued thereon shall be
immediately returned to Purchaser. Notwithstanding the foregoing, at Purchaser's
option, in lieu of depositing with the Escrow Company cash for the Additional
▇▇▇▇▇▇▇ Money, Purchaser may deliver to Seller a promissory note from
Purchaser's affiliate, General Growth Properties, Inc., in the form of Exhibit C
attached hereto (the "▇▇▇▇▇▇▇ Money Note"). In the event that Purchaser elects
to deliver the ▇▇▇▇▇▇▇ Money Note instead of depositing cash, all references in
this Agreement to the "▇▇▇▇▇▇▇ Money" shall be deemed to include the Initial
▇▇▇▇▇▇▇ Money and the ▇▇▇▇▇▇▇ Money Note, except that (i) at Closing, the
▇▇▇▇▇▇▇ Money Note shall be returned to Purchaser and shall not be credited
against the Purchase Price and (ii) in the event of Purchaser's default, Seller
shall have the right to immediately collect the full amount of the ▇▇▇▇▇▇▇ Money
Note and retain such amount, together with the Initial ▇▇▇▇▇▇▇ Money, as
liquidated damages in
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accordance with the provisions of Section 17(b) below, and Purchaser agrees to
assist Seller in effecting such collection.
CASH BALANCE. Provided all conditions to Closing have either been
satisfied or waived pursuant hereto, Purchaser shall pay the balance of the
Purchase Price, subject to the prorations and credits described in Section 5
below, in cash (the "Cash Balance") by wire transfer of immediately available
United States of America funds to the Title Company for payment to Seller, in
accordance with the terms and conditions of this Agreement so that the funds are
unconditionally available for immediate disbursement to the Seller no later than
12:00 noon (Chicago, Illinois time) on the Closing Date.
Conditions Precedent. In the event any of the conditions set forth in
Sections 3.2(b), 3.3, 3.4 or 3.5 below shall not have been fulfilled, accepted
or deemed accepted or waived as provided herein on or before the applicable
dates specified herein, Purchaser (or Seller, without respect to Section 3.5)
shall have the right to terminate this Agreement by giving written notice
thereof to Seller (or Purchaser, with respect to Section 3.5) on or before the
respective dates specified herein, and thereupon all ▇▇▇▇▇▇▇ Money and all
interest accrued thereon shall be refunded to Purchaser and neither party shall
have any further rights or obligations hereunder, except for the Surviving
Obligations (as hereinafter defined).
Seller's Deliveries. Seller has delivered or made available to Purchaser
complete copies of the following items pertaining to the Property which are in
Seller's actual possession or in the possession of Seller's Property Manager:
all leases, licenses, concessions, occupancy agreements, and amendments
thereto encumbering the Property, all of which are listed on Schedule 1 (the
"Lease Documents"), together with the reciprocal easement and operating
agreement with the Anchor Property Operators, as amended and supplemented (the
"REOA");
all Service Contracts;
year-to-date operating statement for the Property for the current year
and year-end operating statements for the prior two (2) years;
copies of the real estate tax bills for the current year and two (2)
prior years;
all existing environmental reports;
the existing owner's title policy;
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the existing survey (the "Existing Survey");
existing plans and specifications;
year-to-date sales reports for the Property for the current year and
year-end sales reports for the prior two (2) years; and
1999 budget.
Seller shall provide to Purchaser any documents described in this Section
3.1 and first coming into Seller's possession or produced by Seller after the
initial delivery and continue to provide the same during the pendency of this
Agreement.
In the event this Agreement terminates for any reason, Purchaser shall
immediately return to Seller all information delivered by Seller or Seller's
agent(s) to Purchaser or Purchaser's agent(s). The foregoing provision shall
survive termination of this Agreement.
Due Diligence. Purchaser and its representatives shall be permitted to
enter upon the Property at any reasonable time and from time to time before the
Closing Date to examine, inspect and investigate the Property as well as all
other records and other documentation provided by Seller or located at the
Property (collectively, "Due Diligence"). The Due Diligence shall be subject to
the terms, conditions and limitations set forth in this Section 3.2 and
Purchaser's conduct thereof shall be in strict compliance with its covenants and
agreements contained herein.
Purchaser shall have a right to enter upon the Property for the
purpose of conducting its Due Diligence provided that in each such instance (i)
Purchaser notifies Seller of its intent to enter the Property to conduct its Due
Diligence not less than forty-eight (48) hours prior to such entry; (ii) the
date and approximate time period are scheduled with Seller; and (iii) Purchaser
is in full compliance with the insurance requirements set forth in Section
3.2(f) hereof. At Seller's election, a representative of Seller shall be present
during any entry by Purchaser or its representatives upon the Property for
conducting its Due Diligence. Purchaser shall use reasonable efforts to ensure
that neither it nor any of its representatives interfere with the tenants or
ongoing operations occurring at the Property. Purchaser shall not cause or
permit any mechanic liens, materialmen's liens or other liens to be filed
against the Property as a result of its Due Diligence.
Purchaser shall have until the expiration of the Due Diligence
Period to conduct its Due Diligence and, in Purchaser's sole discretion, to
determine whether the Property is acceptable to Purchaser. Purchaser may, for
any or no reason, terminate this Agreement by giving written notice of
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termination to Seller on or before the expiration of the Due Diligence Period.
If Purchaser does not timely give notice of termination as aforesaid, Purchaser
shall be deemed to have elected to purchase the Property in accordance with the
terms and conditions of this Agreement, the condition precedent set forth in
this Section 3.2(b) shall be deemed satisfied and this Agreement shall continue
in full force and effect. In the event of such termination, the ▇▇▇▇▇▇▇ Money
and all interest accrued thereon shall be returned to Purchaser and neither
party shall have any further obligations to the other party hereunder, except
for the Surviving Obligations. Without intending to limit the reasons or
discretion given to Purchaser to terminate this Agreement pursuant to this
Section 3.2(b), Purchaser may terminate this Agreement before the end of the Due
Diligence Period in accordance with this Section 3.2(b) in the event that
Purchaser does not obtain its internal approvals from the requisite parties.
Purchaser shall, at least thirty-one (31) days prior to the
Closing Date, notify Seller in writing requesting termination of any or all of
the Service Contracts, which are noted on Schedule 2 as being terminable upon
thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser
does not timely give notice requesting termination of a Service Contract,
Purchaser shall be deemed to have accepted the assumption of such Service
Contract. Purchaser shall assume all other Service Contracts listed on Schedule
2. Seller shall assign to Purchaser all of its right, title and interest in and
to all benefits under the Service Contracts assumed by Purchaser, including all
income payable from and after the Closing Date under the Service Contract with
Outdoor Systems Advertising. In the event Purchaser timely elects not to assume
a Service Contract, Seller shall terminate such Service Contract prior to the
Closing Date and pay all costs, fees and penalties in connection therewith.
Purchaser shall have the right to conduct, at its sole cost and
expense, any inspections, studies or tests that Purchaser deems appropriate in
determining the condition of the Property, provided, however, Purchaser is not
permitted to perform any intrusive testing, including, without limitation, a
Phase II environmental assessment or boring, without (i) submitting to Seller
the scope and inspections for such testing; and (ii) obtaining the prior written
consent of Seller for such testing, which consent shall not be unreasonably
withheld, denied or delayed, except in connection with ground water testing, in
which case Seller may withhold its consent in its sole and absolute discretion.
Purchaser agrees and covenants with Seller that prior to the
Closing Date Purchaser shall not disclose to any third party (other than
affiliates, investors, lenders, employees, agents, accountants, attorneys and
other professionals and consultants in connection with the transaction
contemplated herein) without Seller's prior written consent, unless Purchaser is
obligated by law to make such disclosure, any of the reports or any other
documentation or information obtained by Purchaser which relates to the Property
or Seller in any way, all of which shall be used by Purchaser and its agents
solely in connection
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with the transaction contemplated hereby. In the event that this Agreement is
terminated, Purchaser agrees that all such information will be held in strict
confidence for not less than three years, subject to any legal obligation to
make such disclosure.
Purchaser agrees to indemnify, protect, defend and hold Seller and
its partners, trustees, beneficiaries, shareholders, members, managers, advisors
and other agents and their respective partners, trustees, beneficiaries,
employees, officers, directors and shareholders (the "Seller Indemnified
Parties") harmless from and against any and all direct and actual (and excluding
compensatory, punitive and consequential) liabilities, demands, actions, suits,
losses, costs, damages, claims and expenses (including, without limitation
reasonable attorneys' fees, court costs and litigation expenses) made, brought,
sought or incurred by any of the Seller Indemnified Parties relating to any
inspection activities of Purchaser (including activities of any of Purchaser's
employees, consultants, contractors or other agents) directly or indirectly
arising out of, caused (in whole or in part) by or in connection with the
Property, including, without limitation, mechanics' liens, damage to the
Property, injury to persons or property resulting from such activities in
connection therewith. In the event that the Property is disturbed or altered in
any way as a result of such activities, Purchaser shall promptly restore the
Property to its condition existing prior to the commencement of such activities
which disturb or alter the Property. Furthermore, Purchaser agrees to maintain
and cause any of its representatives or agents conducting any Due Diligence to
maintain and have in effect commercial general liability insurance with (i)
limits of not less than One Million and 00/100 Dollars ($1,000,000.00) for
personal injury, including bodily injury and death, and property damage, (ii)
such insurance shall name Oak View Mall Corporation, Heitman Capital Management
LLC ("HCM") and Urban Retail Properties Co. and their respective trustees,
beneficiaries, shareholders, members, employees, officers, and directors as
additional insured parties and (iii) waiver of subrogation. Purchaser shall
deliver to Seller a copy of the certificate of insurance effectuating the
insurance required hereunder prior to the commencement of such activities which
certificate shall provide that such insurance shall not be terminated or
modified without at least thirty (30) days' prior written notice to Seller.
Purchaser acknowledges and agrees that it shall have no right to
review, inspect or obtain any of the following: (i) internal memoranda,
correspondence, analyses, documents or reports prepared by or for Seller or an
affiliate of Seller in connection with (A) this Agreement (B) the transaction
contemplated by this Agreement, (C) the acquisition of the Property by Seller
(other than environmental reports, if any) or (D) any prior or current
contemplated reorganization of Seller and certain affiliated funds (ii)
communications between Seller and HCM, and (iii) appraisals, assessments or
other valuations of the Property in the possession of Seller or HCM.
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Prior to the Closing, Purchaser may initiate oral communications
with any tenant regarding new leases, renegotiating current lease terms or
renewal lease terms. In no event shall Seller be obligated for any assurances
given to tenants by Purchaser regarding such communications and Purchaser shall
indemnify and hold Seller harmless from same.
Sections 3.2(e) and 3.2(f) and such other provisions in this
Agreement designated as surviving termination shall survive any termination of
this Agreement (collectively, the "Surviving Obligations").
Title and Survey. Seller previously has, at Seller's sole cost and
expense, delivered to Purchaser for Purchaser's review a commitment for a
standard ALTA owner's title insurance policy, along with a copy of each
instrument listed as an exception thereon (the "Title Commitment") on the Real
Property issued by the Title Company and the Existing Survey. The standard ALTA
form owners's title insurance policy insuring Purchaser or its permitted
assignee as fee owner of the Real Property in the amount of the Purchase Price,
endorsed as required under this Section 3.3 and subject only to the Permitted
Exceptions (as hereinafter defined) is hereinafter referred to as the "Title
Policy". Seller, at its sole cost and expense, shall deliver to Purchaser for
Purchaser's review an update to the Existing Survey certified to Purchaser and
the Title Company which shall comply with the most recent minimum standard
detail requirements for ALTA/ACSM Land Surveys and contain Table A Optional
Items 1, 2, 3, 4, 6, 7(a), 7(b)(1), 8, 9, 10, 11, 13, 14, 15 and 16 (the
"Updated Survey"). During the Due Diligence Period, Purchaser shall have the
right to obtain, at Seller's cost and expense, those endorsements to the Title
Commitment listed in Exhibit D attached hereto, to the extent the Title Company
is willing to issue same. Purchaser shall have until the date which is seven (7)
business days after receipt of the last to be delivered of the Title Commitment
and Updated Survey (such date being referred to as the "Title Review Date") for
examination of the Title Commitment and Updated Survey and the making of any
objections thereto, said objections to be made in writing and delivered to
Seller on or before the Title Review Date. If Purchaser shall fail to make any
objections on or before the Title Review Date, Purchaser shall be deemed to have
accepted all exceptions to the Title Commitment and the form and substance of
the Updated Survey and all matters shown thereon; all such exceptions and
matters and any exceptions or matters caused by or through Purchaser shall be
included in the term "Permitted Exceptions" as used herein. If any objections to
the Title Commitment or Updated Survey are made on or before the Title Review
Date, then Seller shall have the right, but not the obligation (except as
otherwise expressly described below), to cure (by removal, endorsement or
otherwise) such objections on or before the Closing Date. If any such objections
are not cured by Seller by the scheduled Closing Date, then Purchaser may as its
only option, elect to either: (y) waive such objection(s) and consummate the
transaction contemplated by this Agreement without adjustment to the Purchase
Price other than a reduction equal to the amount of any cure for any objection
Seller is required to cure
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pursuant to the immediately succeeding sentence if Seller fails to so cure any
such objection; or (z) terminate this Agreement, in which event the ▇▇▇▇▇▇▇
Money and all interest accrued thereon shall be returned to Purchaser and
neither party shall have any further obligations to the other party except for
the Surviving Obligations. Notwithstanding the foregoing, Seller, at its cost,
shall be obligated to cure or otherwise remove by Closing all mortgages, deeds
of trust, judgment liens, mechanics' and materialmens' liens and other liens and
encumbrances of a definite amount against the Property and which were created by
Seller for Seller's account (other than liens for taxes and assessments which
are not delinquent) and shall bond over any such liens created by tenant(s)
whether or not Purchaser objects thereto. With respect to any such liens created
by tenants of the Property, Seller shall enforce its lease provisions against
such tenant (s) and either require such tenant(s) to cure (i.e., satisfy such
liens) or provide whatever coverage is necessary to the Title Company to insure
over such liens. It is hereby understood and agreed by the parties that with
respect to the foregoing tenant liens, after the Closing, Seller shall retain
all rights and remedies (with the exception of eviction proceedings or the
termination of such lease) to enforce the terms of the applicable lease in
connection with same.
Tenant and Anchor Estoppels. Seller shall have delivered to Purchaser,
no later than seven (7) days prior to the Closing Date, (i) estoppel
certificates from Sears, ▇▇▇▇▇▇▇'▇, ▇.▇. Penney and ▇▇▇▇▇▇▇'▇ , substantially in
the form of Exhibit E attached hereto with respect to Sears, Dillard's and ▇.▇.
▇▇▇▇▇▇, and substantially in the form of Exhibit F attached hereto with respect
to ▇▇▇▇▇▇▇'▇, or in the form of estoppel customarily given by such third parties
(the "Anchor Estoppels") and (ii) estoppel certificates, in the form of Exhibit
G attached hereto or in the form of estoppel required under such tenant's lease,
from a sufficient number of tenants such that there are executed estoppels
representing at least seventy-five percent (75%) of the square footage of the
Property currently leased to tenants (excluding Younkers, but including the
ground lessees of the buildings on the Outlot Property), and without material
modification (the "Tenant Estoppels"). The Tenant Estoppels and Anchor Estoppels
shall be collectively referred to as the "Necessary Estoppels." For purposes of
the foregoing, a tenant shall not be considered leasing the Property if the term
of its lease is month-to-month or expires within six (6) months after the
Closing Date, or is occupying the Property under a specialty license agreement.
It is hereby understood and agreed that in order for a Tenant Estoppel to be
acceptable to Purchaser, the Tenant Estoppel must not be in material conflict
with the information contained in each of the Tenant Estoppels prepared by
Seller and approved by Purchaser (it being understood that Purchaser shall have
two (2) business days to approve of the Tenant Estoppels after receipt therefrom
by Seller) and must not specify any material defaults of Seller, as landlord.
Notwithstanding the preceding sentence, the Tenant Estoppel shall nevertheless
be deemed acceptable if the only conflict with the information contained therein
is that the Tenant Estoppel does not include the proposed "SNDA language" (i.e.
the language specifically intended to benefit a proposed lender financing the
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Property). Seller shall not be in default under this Agreement or have any
liability to Purchaser if Seller is unable to obtain any of the Necessary
Estoppels. In the event the Necessary Estoppels are not delivered as provided in
this Section 3.4, Purchaser shall have the right to terminate this Agreement in
accordance with the provisions of this Section by written notice given not less
than 2 business days prior to the Closing Date, in which event all ▇▇▇▇▇▇▇ Money
and all interest accrued thereon shall be refunded to Purchaser and neither
party shall have any further rights or obligations hereunder, except for the
Surviving Obligations.
Transaction Approval. The obligations of Seller under this Agreement
are contingent upon the approval of this Agreement by its Investment Committee.
Not later than the last day of the Due Diligence Period, Seller shall deliver
written notice of such approval or disapproval to Purchaser. If no such notice
is delivered, then Seller shall be deemed to have disapproved this Agreement.
Closing; Conditions; Deliveries.
Time, Place and Manner of Closing. The Closing shall be held on the
Closing Date in the offices of the Title Company or at any location mutually
acceptable to the parties.
Condition to Parties' Obligation to Close. In addition to all other
conditions set forth in this Agreement, the obligation of Seller, on the one
hand, and Purchaser, on the other hand, to consummate the transaction
contemplated hereunder shall be contingent upon the following:
The other party's representations and warranties contained herein
shall be true and correct in all material respects as of the date of this
Agreement and the Closing Date;
As of the Closing Date, the other party shall have performed its
obligations hereunder in all material respects and all deliveries to be made at
Closing by such other party have been tendered;
As of the Closing Date, there shall exist no pending action, suit
or proceeding with respect to the other party before or by any court or
administrative agency which seeks to restrain or prohibit, or to obtain damages
or a discovery order with respect to, this Agreement or the consummation of the
transactions contemplated hereby; and
At the Closing, Purchaser shall have received the Title Policy or
an initialed ▇▇▇▇-up of the Title Commitment in the form described in Section
4.3(d) below.
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Deliveries. On the Closing Date, each party shall execute and deliver
to the other and/or the Escrow Company the following documents:
Seller shall deliver to Purchaser and/or the Escrow Company:
a special warranty deed (the "Deed") to the Property in
recordable form, duly executed by Seller and acknowledged and in substantially
the same form as set forth in Exhibit I attached hereto, conveying to Purchaser
title to the Real Property, subject to the Permitted Exceptions;
a ▇▇▇▇ of sale duly executed by Seller and in substantially
the same form as set forth in Exhibit J attached hereto, conveying to Purchaser
title to the Personal Property (as defined therein);
an assignment to Purchaser of the Lease Documents duly
executed by Seller and in substantially the same form as set forth in Exhibit K
attached hereto, together with an assignment of leases in recordable form with
respect to those Lease Documents which are of record, duly executed and
acknowledged by Seller;
an assignment duly executed by Seller and in substantially
the same form as set forth in Exhibit L attached hereto whereby Seller assigns
to Purchaser (a) the Service Contracts, (b) other third party construction,
leasing or other agreements, the obligation under which are to be assumed by
Purchaser pursuant to Section 5.8 or other applicable provisions hereof, and (c)
all licenses and permits affecting the Property (to the extent freely
assignable);
an assignment duly executed by Seller and in substantially
the same form as set forth in Exhibit H attached hereto whereby Seller assigns
to Purchaser the REOA and any agreements with the owners of the outlots
currently occupied by Chili's, Applebee's, Blockbuster and Clarkson Medical
Group (the "Outlot Owners");
a non-foreign transferor certification pursuant to Section
1445 of the Internal Revenue Code and any similar provisions of applicable state
law, in substantially the same form as set forth on Exhibit M attached hereto
(the "Affidavit");
a certified resolution of Seller certifying that Seller has
the legal power, right and authority to consummate the sale of the Property and
indicating the names of persons with authority to sign on behalf of Seller;
originals of the Lease Documents, Service Contracts and keys
to the Property;
13
all documents reasonably requested by the Title Company in
order to enable Purchaser to obtain requested endorsements to the Title Policy,
including, without limitation, such instruments as shall be required by the
Title Company to insure title to the Property but only provided that such
documents do not expose Seller to any expense or liability not already expressly
provided in this Agreement;
evidence of termination of all Service Contracts requested to
be terminated by Purchaser pursuant to Section 3.2(c) hereof, including, without
limitation, the property management agreement with Urban Retail Properties Co.;
an affidavit (but not an indemnity) satisfactory to the Title
Company sufficient to cause the removal of any exceptions from any title policy
to be issued to Purchaser for unfiled mechanics' and materialmens' liens and
rights of parties in possession other than tenants;
a written certificate executed on behalf of Seller and
addressed to Purchaser to the effect that all of the representations and
warranties of Seller herein contained in Section 6 are true and correct in all
material respects as of the Closing Date (as the same may have been updated as
provided in said Section 6); and
a personal undertaking regarding gap coverage.
Purchaser shall deliver to Seller or the Escrow Company:
the Cash Balance, by wire transfer, as provided in Section
2.2 hereof;
an assumption duly executed by the Purchaser of the
assignments described in Sections 4.3(a)(iii), (iv) and (v); and
a certified resolution of Purchaser certifying that Purchaser
has the legal power, right and authority to consummate the purchase of the
Property.
Seller and Purchaser shall jointly deliver to the Escrow Company:
A closing statement;
All transfer declarations or similar documentation required
by law;
14
Letters to the tenants of the Property in the form of Exhibit
N attached hereto; and letters to the Anchor Property Operators in the form of
Exhibit N-1 attached hereto; and
Notices in substantially the form of Exhibit O attached
hereto to the other party to each Service Contract assumed by Purchaser pursuant
to Section 3.2(c) of this Agreement, together with other notices, in form
reasonably acceptable to the parties hereto, to third parties under other
agreements being assigned pursuant to this Agreement.
The Escrow Company shall deliver to Purchaser the Title Policy or
an initialed ▇▇▇▇-up of the Title Commitment, extending the effective date to
the Closing Date, insuring Purchaser as owner of the Real Property, and removing
all exceptions other than Permitted Exceptions.
Permitted Termination. So long as a party is not in default hereunder,
if any condition to such party's obligation to proceed with the Closing
hereunder has not been satisfied or waived as of the Closing Date or such
earlier date as provided herein, such party may, in its sole discretion,
terminate this Agreement by delivering written notice to the other party before
the Closing Date, or such earlier date required hereunder, and the ▇▇▇▇▇▇▇ Money
and all interest accrued thereon shall thereupon be immediately returned to
Purchaser, or elect to close, notwithstanding the non-satisfaction of such
condition, in which event such party shall be deemed to have waived any such
condition.
Prorations. All items of income and expense shall be paid, prorated or
adjusted as of the close of business on the day prior to the Closing Date (the
"Proration Date") in the manner hereinafter set forth:
Purchaser shall be credited with: (i) the amount of (A) all rents and
(B) all expense contributions, real estate tax contributions, and other
reimbursements from tenants, Anchor Property Operators and Outlot Owners ("Third
Party Contributions") received by Seller and attributable to any month
commencing after the Closing Date; (ii) all unapplied cash security deposits
held by Seller and which were made by tenants under all leases of the Real
Property in effect as of the Closing Date; and (iii) all prepaid security
deposits for leases whose terms have not commenced as of the Closing Date.
All rents and Third Party Contributions for the month of Closing shall
be prorated between Purchaser and Seller based upon their respective days of
ownership for such month in which the Closing occurs. Neither Purchaser nor
Seller shall receive credit at Closing for any payments of rental or other
obligations due but not paid as of the Proration Date. At the time of the final
calculation and collection from tenants, Anchor Property Operators and Outlot
Owners of Third Party Contributions for 1999, whether in the nature of a
reconciliation payment or full payment, in arrears, there shall be a reproration
15
between Purchaser and Seller as to the Third Party Contributions. Such
reproration shall not be made on the basis of a per diem method of allocation,
but shall instead be apportioned between Seller and Purchaser on the basis of
the relative share of actual expenses in question incurred by Seller and
Purchaser during the calendar year in question. Purchaser agrees to prepare the
calendar year 1999 reconciliation for expenses for the Property pursuant to the
terms and conditions hereof. Seller covenants to provide Purchaser with any
information necessary to finalize such calculation. Purchaser covenants to
promptly ▇▇▇▇ tenants for amounts due from tenants attributable to periods prior
to Closing and diligently pursue collections from tenants for a period of six
(6) months after such billing, and, as collected to timely deliver to Seller
reproration amounts due Seller within fifteen (15) days after the end of each
month in which Purchaser receives such money.
Percentage rent shall be prorated between Purchaser and Seller by
utilizing the percentage rent payable for such lease year based upon the actual
days of ownership of the Property. There shall be no adjustment for percentage
rent payments until after the receipt of any percentage rent payments made by
the respective tenants, and only after completion of the applicable lease year
for each tenant.
Any amounts received from tenants, Anchor Property Operators and Outlot
Owners after Closing shall be applied on a case by case basis in the following
order: (i) first on account of any amount then due and payable to Purchaser from
such tenant(s), Anchor Property Operator(s) and/or Outlot Owner(s); (ii) next,
on account of any amount due Seller from such tenant(s), Anchor Property
Operator(s) and/or Outlot Owner(s) for the period up to and including the
Proration Date and (iii) finally, any balance then remaining to Purchaser.
Seller retains the right to pursue its remedies against tenants, Anchor Property
Operators and Outlot Owners after Closing for any delinquent payments or other
amounts owed to Seller, except for actions or proceedings affecting possession
or landlord liens. However, Seller will not exercise any such rights or remedies
unless such delinquent amounts have not been collected by Purchaser and paid to
Seller within three (3) months after the Closing Date. Any money due to Seller
shall be remitted to Seller within fifteen (15) days after the end of each month
in which Purchaser receives such money. Any amounts received by Seller after the
Closing Date for any period after the Proration Date shall be remitted to
Purchaser within fifteen (15) days after the end of the month following first
receipt of such amounts.
Operating expenses, including, without limitation, permits, licenses,
membership dues, and any other prepaid expenses, shall be prorated between
Purchaser and Seller based upon the actual days of their respective ownership of
the Property utilizing the actual expenses or reasonable estimates.
16
Real estate taxes due and payable in the year in which the closing
occurs (based on delinquency dates) shall be prorated between Seller and
Purchaser based upon the actual days of ownership of the parties for the year in
which Closing occurs (i.e. the taxes to be prorated are those set forth in the
tax ▇▇▇▇ issued in December, 1998 and delinquent after April and August, 1999).
Except for utilities billed directly to tenants, utilities shall be
prorated as of the Proration Date based upon estimates using the prior month's
actual invoices.
Purchaser shall be responsible for and pay for all "Leasing Costs"
which shall include: (a) the cost of all tenant improvements, (b) all leasing
commissions, (c) all space planning costs, (d) all legal costs, and (e) any and
all concessions, that are due and payable as a result of leases made pursuant to
any New Proposal which Purchaser approved, or is deemed to have approved as
provided in Section 15 of this Agreement. Although Purchaser has approved the
existing leasing proposals listed on Schedule 4 attached hereto (the "Existing
Proposals"), Purchaser shall not be obligated to pay any Leasing Costs that may
be due and payable as a result of the Existing Proposals. In the event Purchaser
hereafter approves a New Proposal regarding a termination of the lease with
Footaction, then Purchaser shall be entitled to any termination fee payable
under such New Proposal.
All insurance policies and property management agreements shall be
terminated, at Seller's sole cost and expense, as of the Closing Date and there
shall be no proration with respect to these items.
All other items which are customarily prorated in transactions similar to the
transaction contemplated hereby and which were not heretofore dealt with, will
be prorated as of the Proration Date. Seller and Purchaser intend that credits
and charges with respect to all proration items for all days preceding the
Proration Date shall be allocated to Seller, and credits and charges with
respect to such items for all days including and after the Proration Date shall
be allocated to Purchaser. Seller and Purchaser hereby agree that any
adjustments, apportionments and payments otherwise required to be made as of the
Proration Date may to the extent necessary or desirable be estimated by
Purchaser and Seller based on the most recent available data, and, as soon as
practicable and if necessary from time to time after the Closing Date,
additional adjustment, apportionments and payments shall be made to adjust for
any differences between the actual apportionment or adjustment and the amount
thereof estimated as of the Proration Date. Any errors or omissions in computing
apportionments at the Closing shall be corrected promptly after their discovery.
All reconciliations shall be completed no later than September 30, 2000, and
Purchaser agrees to complete all annual reconciliations and send out bills
therefor within 120 days after the end of the applicable billing period. In the
event any prorations or computations made under this Section are based on
17
estimates or prove to be incorrect, then either party shall be entitled to an
adjustment to correct the same, provided that it makes written demand on the
party from whom it is entitled to such adjustment within one hundred and eighty
days after the end of the current calendar year except for Third Party
Contributions and percentage rent not yet collected. Purchaser shall indemnify
and hold Seller harmless from and against any and all liabilities, losses,
damages, claims and costs (including reasonable attorneys' fees, court costs and
litigation expenses) (i) in connection with Purchaser's assumption of
responsibility for the Leasing Costs as provided in Section 5.8 herein,
including but not limited to any and all obligations under third party contracts
assumed by Purchaser as provided by Sections 4.3 (b)(ii) hereof; and (ii) for
which Purchaser received credits pursuant to this Section 5. The indemnity set
forth in the immediately preceding sentence and the covenants contained in this
Section 5 shall survive Closing.
Seller's Representations, Warranties and Covenants. Seller hereby
represents, warrants and covenants as follows:
Power. Seller has the legal power, right and authority to enter into
this Agreement and the instruments referenced herein and to consummate the
transactions contemplated hereby.
Requisite Action. Except as otherwise contemplated under Section 3.5
above, all requisite action (corporate, trust, partnership or otherwise) has
been taken by Seller in connection with entering into this Agreement and the
instruments referenced herein and the consummation of the transactions
contemplated hereby. Except as otherwise contemplated under Section 3.5 above,
no consent of any partner, shareholder, member, creditor, investor, judicial or
administrative body, authority or other party is required which has not been
obtained to permit Seller to enter into this Agreement and consummate the
transaction contemplated hereby.
Authority. The individuals executing this Agreement and the instruments
referenced herein on behalf of Seller have the legal power, right and actual
authority to bind Seller to the terms and conditions hereof and thereof.
Validity. This Agreement and all documents required hereby to be
executed by Seller are and shall be valid, legally binding obligations of and
enforceable against Seller in accordance with their terms.
Conflicts. None of the execution and delivery of this Agreement and
documents referenced herein, the incurrence of the obligations set forth herein,
the consummation of the transactions herein contemplated or referenced herein
conflicts with or results in the material breach of any terms, conditions or
provisions of or constitutes a default under, any bond, note, or other
evidence of
18
indebtedness or any contract, lease or other agreements or instruments to
which Seller is a party.
Leases. attached hereto as Schedule 1 (the "Lease Schedule") is a true,
correct and complete list of all leases, licenses and other agreements to occupy
any portion of the Real Property, together with all amendments thereof and
supplements thereto, which shall be updated by Seller prior to Closing, if
necessary, including the addition thereto of any such agreements executed after
the date of this Agreement through the Closing Date (all such items, together
with such leases that Seller may enter into after the date hereof in accordance
with Section 15(b) hereof, if any, are collectively referred to herein as the
"Leases"), and there are no tenants, persons or entities occupying space in the
Property other than pursuant to the Leases (except for any subleases or
concession agreements not disclosed to Seller);
the copies of the Leases delivered by Seller to Purchaser pursuant
to Section 3.1 hereof constitute all of the Leases relating to the Property as
of the date hereof and are complete in all material respects; and
Except for commissions for which Purchaser is responsible pursuant
to Section 5.8 hereof, there are no leasing commissions or other commissions
presently due and unpaid with respect to any Lease (or if there are any, they
shall be paid in full prior to Closing).
Service Contracts. Attached hereto as Schedule 2 is a complete and
accurate list of the Service Contracts, as of the date of this Agreement which
shall be updated by Seller prior to Closing, if necessary including the addition
thereto of any such agreements executed after the date of this Agreement through
the Closing Date. A true and complete copy of each Service Contract, together
with any amendments or supplements thereto, has been delivered or made available
to Purchaser. Such documents constitute the entire agreement between Seller and
each party to the Service Contracts.
Notices. Seller has not received any written notice that the Property,
and all present uses and operation thereof, are in violation of any applicable
federal, state or local laws, rules, codes or regulations, including, without
limitation, any applicable zoning or land-use laws.
Litigation. Except as set forth on Schedule 3, no litigation, action or
proceeding is pending, nor to the best of the Seller's knowledge has been filed,
or threatened in writing, affecting the Property or Seller's ability to
consummate the transaction contemplated by this Agreement. Schedule 3 shall be
updated by Seller prior to Closing, if necessary.
19
Employees. Seller has no employees. Any individuals retained by
Seller's property manager for various projects at the Property are deemed
employees of Seller's property manager.
Condemnation. There are no pending, or to Seller's knowledge,
threatened condemnation proceedings affecting the Property.
Environmental Condition. Seller has no knowledge of any violation of
Environmental Laws related to the Property or the presence or release (other
than as permitted by law) of Hazardous Materials on or from the Property except
as disclosed in the environmental reports, studies and other information
relating to the environmental condition of the Property delivered by Seller to
Purchaser or made available for Purchaser's review. Neither Seller nor Seller's
agents have received any written notice from a governmental agency that Seller
or the Property is not in compliance with any Environmental Laws. The term
"Environmental Laws" means the Resource Conservation and Recovery Act and the
Comprehensive Environmental Response Compensation and Liability Act ("CERCLA")
and other federal laws governing the environment as in effect on the date of
this Agreement together with their implementing regulations and guidelines as of
the date of this Agreement, and all state, regional, county, municipal and other
local laws, regulations and ordinances that are equivalent or similar to the
federal laws recited above or that purport to regulate Hazardous Materials in
effect as of the date of this Agreement. "HAZARDOUS MATERIALS" means any
substance which is (i) designated, defined, classified or regulated as a
hazardous substance, hazardous material, hazardous waste, pollutant or
contaminant under any Environmental Law, as currently in effect as of the date
of this Agreement, (ii) petroleum hydrocarbon, including crude oil or any
fraction thereof and all petroleum products, (iii) PCBs, (iv) lead, (v) friable
asbestos, (vi) flammable explosives, (vii) infectious materials, or (viii)
radioactive materials.
Tax Proceedings. No application or proceeding is pending with respect
to a reduction or an increase of real estate taxes for the Property that has
been filed by or on behalf of Seller. There are no tax refund proceedings
relating to the Property which are currently pending that have been filed by or
on behalf of Seller.
REOA and Outlot Documents. Schedule 5 attached hereto lists all of the
documents comprising the REOA. There are no unrecorded agreements between Seller
and the Outlot Owners. The copies of such documents delivered by Seller to
Purchaser constitute all of such documents relating to the Property as of the
date hereof and are complete in all material respects.
Indemnity. Seller shall indemnify, defend and hold Purchaser and
Purchaser's shareholders, officers, directors, members, partners, employees,
representatives, and agents, and their respective successors and assigns
(collectively, the "Purchaser Indemnified Parties") harmless from and
against any
20
and all claims, actions, judgments, liabilities, liens, damages, penalties,
fines, costs and reasonable attorneys' fees, foreseen or unforeseen, asserted
against, imposed on or suffered or incurred by Purchaser (or the Property)
directly or indirectly arising out of or in connection with (a) any breach of
the warranties, representations and covenants set forth in this Section 6, (b)
the breach or non-fulfillment by Seller of any of the covenants or agreements of
Seller under this Agreement (c) claims made by any tenant under the Lease
Documents, any Anchor Property Operators under the REOA, any Outlot Owner under
its agreement with the owner of the Property or by any party under those Service
Contracts assigned to Purchaser, that relate to any actions or events first
occurring, or obligations first accruing, prior to the Closing Date, or (d) any
event, occurrence or accident at any time prior to the Closing Date relating to
the Property. The warranties and representations set forth in this Section 6
shall be deemed remade as of Closing and updated if necessary, and said
warranties and representations as so remade and updated, and the indemnity
obligation set forth herein shall survive Closing, provided that any claim by
Purchaser based upon a misrepresentation or breach of any warranty or
representation or indemnity obligation under this Section 6 shall be deemed
waived unless Purchaser has delivered to Seller written notice of such claim
prior to the date which is one year after the Closing Date, and (ii) filed suit
within four (4) months after delivery to Seller of any such notice of claim.
As used in this Section 6, the term "to Seller's knowledge" "actual knowledge"
or "best of Sellers knowledge" or words of similar import (i) shall mean and
apply to the actual knowledge of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, and not to any other parties, (ii) shall mean the actual knowledge
of such individuals, without any investigation or inquiry of any kind, and (iii)
shall not mean such individuals are charged with knowledge of the acts,
omissions and/or knowledge of Seller's agents or employees.
Notwithstanding anything contained in this Agreement to the contrary,
Seller shall have no liability for breaches of any representations, warranties
and certifications (the "Representations") which are made by Seller herein or in
any of the documents or instruments required to be delivered by Seller hereunder
if any one or more of ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇ (collectively, "Purchaser's
Representatives") had actual knowledge of such breach by Seller (including,
without limitation, actual knowledge gained by any of Purchaser's
Representatives in the course of Purchaser's Due Diligence as to a fact or
circumstance which, by its nature, indicates that a Representation was or has
become untrue or inaccurate) at Closing where Purchaser elects to proceed to
close the transaction contemplated by this Agreement, and Purchaser shall not
otherwise have the right to bring any lawsuit or other legal action against
Seller, nor pursue any other remedies against Seller, as a result of the breach
of such Representation caused thereby, but Purchaser's sole right shall be to
terminate this Agreement in which event, the ▇▇▇▇▇▇▇ Money and all interest
accrued thereon shall be returned to Purchaser. Purchaser covenants that
Purchaser's
21
Representatives shall make due inquiry of all individuals and agents of
Purchaser reviewing the deliveries set forth in Section 3.1 hereof and
conducting the Due Diligence.
Purchase As-Is. EXCEPT FOR THE REPRESENTATIONS OF SELLER EXPRESSLY SET
FORTH IN SECTION 6 OF THIS AGREEMENT, PURCHASER ACKNOWLEDGES TO AND AGREES WITH
SELLER THAT PURCHASER IS PURCHASING THE PROPERTY IN ITS "AS-IS, WHERE IS"
CONDITION "WITH ALL FAULTS" AS OF THE CLOSING DATE AND SPECIFICALLY AND
EXPRESSLY WITHOUT ANY WARRANTIES, REPRESENTATIONS OR GUARANTEES, EITHER EXPRESS
OR IMPLIED, AS TO ITS CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE,
MERCHANTABILITY, OR ANY OTHER WARRANTY OF ANY KIND, NATURE, OR TYPE WHATSOEVER
FROM OR ON BEHALF OF SELLER, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6. EXCEPT
FOR THE REPRESENTATIONS OF SELLER EXPRESSLY SET FORTH IN SECTION 6 OF THIS
AGREEMENT, SELLER SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR
REPRESENTATION, ORAL OR WRITTEN, PAST OR PRESENT, EXPRESS OR IMPLIED, CONCERNING
(A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, THE WATER, STRUCTURAL INTEGRITY, SOIL AND GEOLOGY; (B) THE INCOME TO
BE DERIVED FROM THE PROPERTY; (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND
ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON, INCLUDING THE
POSSIBILITIES FOR FUTURE DEVELOPMENT OF THE PROPERTY; (D) THE COMPLIANCE OF OR
BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS
OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY; (E) THE HABITABILITY,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE PROPERTY; (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR
MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY; (G) THE MANNER, QUALITY,
STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY; (H) THE PRESENCE OR ABSENCE
OF HAZARDOUS MATERIALS AT, UNDER, OR ADJACENT TO THE PROPERTY OR ANY OTHER
ENVIRONMENTAL MATTER OR CONDITION OF THE PROPERTY; (I) WHETHER THE PROPERTY IS
YEAR 2000 COMPLIANT; OR (J) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY.
PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR THE REPRESENTATIONS AND
WARRANTIES OF SELLER CONTAINED IN SECTION 6 OF THIS AGREEMENT, ANY INFORMATION
PROVIDED BY OR ON BEHALF OF SELLER WITH RESPECT TO THE PROPERTY WAS OBTAINED
FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT
INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS
AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. SELLER IS NOT LIABLE OR
BOUND IN ANY MANNER
22
BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO
THE PROPERTY, OR THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER,
AGENT, EMPLOYEE, SERVANT OR OTHER PERSON EXCEPT FOR THE EXPRESS REPRESENTATIONS
SET FORTH IN SECTION 6 OF THIS AGREEMENT. PURCHASER FURTHER ACKNOWLEDGES AND
AGREES THAT PURCHASER IS A SOPHISTICATED AND EXPERIENCED PURCHASER OF PROPERTIES
SUCH AS THE PROPERTY AND HAS BEEN DULY REPRESENTED BY COUNSEL IN CONNECTION WITH
THE NEGOTIATION OF THIS AGREEMENT. EXCEPT AS MAY OTHERWISE BE PROVIDED HEREIN,
SELLER HAS MADE NO AGREEMENT TO ALTER, REPAIR OR IMPROVE ANY OF THE PROPERTY.
Purchaser's Representations, Warranties and Covenants. Purchaser hereby
represents, warrants and covenants as follows:
Power. Purchaser has the legal power, right and authority to enter into
this Agreement and the instruments referenced herein and to consummate the
transactions contemplated hereby.
Requisite Action. Except as otherwise contemplated under Section
3.2(b), all requisite action (corporate, trust, partnership or otherwise) has
been taken by Purchaser in connection with entering into this Agreement and the
instruments referenced herein and the consummation of the transactions
contemplated hereby. Except as otherwise contemplated under Section 3.2(b), no
consent of any partner, shareholder, member, creditor, investor, judicial or
administrative body, authority or other party is required which has not been
obtained or shall not be obtained prior to the Closing Date to permit Purchaser
to enter into this Agreement and consummate the transaction contemplated hereby.
Authority. The individuals executing this Agreement and the instruments
referenced herein on behalf of Purchaser have the legal power, right and actual
authority to bind Purchaser to the terms and conditions hereof and thereof.
Validity. This Agreement and all documents required hereby to be
executed by Purchaser are and shall be valid, legally binding obligations of and
enforceable against Purchaser in accordance with their terms.
Conflicts. Neither the execution and delivery of this Agreement and
documents referenced herein, nor the incurrence of the obligations set forth
herein, nor the consummation of the transactions herein contemplated, nor
referenced herein conflict with or result in the material breach of any terms,
conditions or provisions of or constitute a default under, any bond, note, or
other evidence of indebtedness or any contract, lease or other agreements or
instruments to which Purchaser is a party.
23
Litigation. There is no action, suit or proceeding pending or, to the
best of Purchaser's knowledge, threatened against Purchaser in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the ability of Purchaser to carry out the
transactions contemplated by this Agreement.
Indemnity. Purchaser shall indemnify, protect and hold the Seller
Indemnified Parties harmless from and against any and all claims, actions,
judgments, liabilities, liens, damages, penalties, fines, costs and reasonable
attorneys' fees, foreseen or unforeseen, asserted against, imposed on or
suffered or incurred by Seller directly or indirectly arising out of or in
connection with (a) any breach of the warranties, representations and covenants
set forth in this Section 8; (b) claims made by any tenant under the Lease
Documents, any Anchor Property Operators under the REOA, any Outlot Owner under
its agreement with the owner of the Property or by any party under those Service
Contracts assigned to Purchaser, that relate to any actions or events first
occurring, or obligations first accruing, on or subsequent to the Closing Date;
(c) the breach or non-fulfillment by Purchaser of any of the covenants or
agreements of Purchaser under this Agreement or the documents delivered in
connection with this Agreement; or (d) any event, occurrence or accident at any
time subsequent to the Closing Date relating to the Property. The warranties,
representations and indemnities set forth in this Section 8 shall be deemed
remade as of Closing and shall survive Closing, and said warranties and
representations as so remade, and the indemnity obligation set forth in herein
shall be deemed waived unless Seller has given Purchaser written notice of any
such claim prior to the date which is one year from the Closing Date.
Closing Costs. Seller shall pay the following expenses: (i) the costs to
obtain a standard ALTA owner's title insurance policy with the endorsements
described in Exhibit D; (ii) the costs to obtain the Existing and Updated
Surveys; (iii) 50% of all closing escrow fees, including "New York Style"
closing fees for the transaction described herein; (iv) all recording fees for
releasing mortgages and other security instruments to clear title; (v) Seller's
legal fees and expenses; (vi) all transfer taxes; and (vii) all costs and
expenses incurred in connection with the transfer of any transferable permits,
warranties or licenses in connection with the ownership or operation of the
Property. Purchaser shall pay the following expenses: (a) the costs for any
title reinsurance; (b) the costs to obtain any modifications to the Updated
Survey; (c) 50% of all closing escrow fees, including "New York Style" closing
fees for the transaction described herein; (d) the fee for the recording of the
Deed; (e) all costs and expenses associated with Purchaser's financing, if any;
(f) all recording fees for the deed and Purchaser's mortgage and other security
instruments; and (g) Purchaser's legal fees and expenses. The provisions of this
Section 9 shall survive Closing or any termination of this Agreement.
24
Commissions. Seller shall be solely responsible for the payment of any
commission owing to Eastdil Realty Company, L.L.C. with respect to the purchase
and sale transaction described herein. Seller and Purchaser each warrant and
represent to the other that (other than Eastdil Realty Company, L.L.C.) neither
has had any dealings with any broker, agent, or finder relating to the sale of
the Property or the transactions contemplated hereby, and each agrees to
indemnify and hold the other harmless against any claim for brokerage
commissions, compensation or fees by any broker, agent, or finder in connection
the sale of the Property or the transactions contemplated hereby resulting from
the acts of the indemnifying party. The provisions of this Section 10 shall
survive Closing or any termination of this Agreement.
New York Style Closing. It is contemplated that the transaction shall be
closed by means of a so-called New York Style Closing, with the concurrent
delivery of the documents of title, transfer of interest, delivery of the Title
Policy or marked-up title commitment described in Section 4.3(d) and the payment
of the Purchase Price. Seller and Purchaser agree that disbursement of the
Purchase Price, as adjusted by the prorations, shall not be conditioned upon the
recording of the Deed, but rather, upon the issuance of an irrevocable
commitment by the Title Company to issue the Title Policy. Seller and Purchaser
shall each provide any undertaking to the Title Company necessary to accommodate
the New York Style Closing.
Attorneys' Fees and Costs. In the event suit or action is instituted to
interpret or enforce the terms of this Agreement, or in connection with any
arbitration or mediation of any dispute, the prevailing party shall be entitled
to recover from the other party such sum as the court, arbitrator or mediator
may adjudge reasonable as such party's costs and attorney's fees, including such
costs and fees as are incurred in any trial, on any appeal, in any bankruptcy
proceeding (including the adjudication of issues peculiar to bankruptcy law) and
in any petition for review. Each party shall also have the right to recover its
reasonable costs and attorney's fees incurred in collecting any sum or debt owed
to it by the other party, with or without litigation, if such sum or debt is not
paid within fifteen (15) days following written demand therefor.
Notice. All notices, demands, deliveries and communications (a "Notice")
under this Agreement shall be delivered or sent by: (i) first class, registered
or certified mail, postage prepaid, return receipt requested, (ii) nationally
recognized overnight carrier, (iii) facsimile with original Notice sent via
overnight delivery, or (iv) reputable personal messenger delivery service,
addressed, in each case, to the address of the party in question set forth in
the first paragraph of this Agreement and copies to the parties designated below
or to such other address as either party may designate by Notice pursuant to
this Section 13. Notices shall be deemed given (w) three business days after
being mailed as provided in clause (i) above, (x) one business day after
delivery to the overnight carrier as provided in clause (ii) above, (y) on the
day of the transmission of the facsimile
25
so long as it is received in its entirety by 5:00 pm (Chicago, Illinois time) on
such day and the original of such Notice is received the next business day via
overnight mail as provided in clause (iii) above or (z) the day of delivery, if
sent by personal delivery services as provided in clause (iv) above.
Notices to Seller copy to: Schwartz, Cooper, ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇
Notices to Purchaser copy to: ▇▇▇▇, Gerber & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇
Fire or Other Casualty; Condemnation.
If the Property or any part thereof is damaged by fire or other
casualty prior to the Closing Date which would cost in excess of Five Hundred
Thousand and no/100 Dollars ($500,000.00) to repair (as determined by an
insurance adjuster selected by the insurance carriers), Purchaser may terminate
this Agreement by written notice to Seller given on or before the earlier of (i)
twenty (20) days following such casualty or (ii) the Closing Date. In the event
of such termination, this Agreement shall be of no further force and effect and,
except for the Surviving Obligations, neither party shall thereafter have any
further obligation under this Agreement, and Seller shall direct the Escrow
Company to promptly return all ▇▇▇▇▇▇▇ Money to Purchaser. If Purchaser does not
elect to terminate this Agreement or the cost of repair is determined by said
adjuster to be less than Five Hundred Thousand and no/100 Dollars ($500,000.00)
then the Closing shall take place as herein provided without abatement of the
Purchase Price, and Seller shall assign and transfer to Purchaser on the Closing
Date, without warranty or recourse, all of Seller's right, title and interest to
the balance of insurance proceeds paid or payable to Seller on account of such
fire or casualty remaining after reimbursement to Seller for the total amount of
all costs and expenses incurred by Seller in connection therewith including but
not limited to making emergency repairs, securing the Property and complying
with applicable governmental requirements. Seller shall pay to Purchaser the
amount of the deductible of any of Seller's applicable insurance policies.
26
If any material portion of the Property is taken in eminent domain
proceedings prior to Closing, Purchaser may terminate this Agreement by notice
to Seller given on or before the earlier of (i) twenty (20) days after such
taking or (ii) the Closing Date, and, in the event of such termination, this
Agreement shall be of no further force and effect and, except for the Surviving
Obligations, neither party shall thereafter have any further obligation under
this Agreement, and Seller shall direct the Escrow Company to promptly return
all ▇▇▇▇▇▇▇ Money to Purchaser. If Purchaser does not so elect to terminate or
if the taking is not material, then the Closing shall take place as herein
provided without abatement of the Purchase Price, and Seller shall deliver or
assign to Purchaser on the Closing Date, without warranty or recourse, all of
Seller's right, title and interest in and to all condemnation awards paid or
payable to Seller.
Operations After Date of This Agreement. Seller covenants and agrees with
Purchaser that:
after the date hereof through the Closing, Seller will (except as
specifically provided to the contrary herein):
Refrain from transferring any of the Property or creating on the
Property any easements, liens, mortgages, encumbrances, or other interests
which will survive Closing or permitting any changes to the zoning
classification of the Land;
Refrain from entering into or amending any contracts, or other
agreements (excluding leases) regarding the Property (other than contracts
in the ordinary and usual course of business and which are cancelable by
the owner of the Property without penalty within thirty (30) days after
giving notice thereof);
Continue to operate, maintain, and repair the Property in a manner
consistent with Seller's current practices;
Comply with all of the material terms of the Lease Documents;
Refrain from offering the Property for sale or joint-venture or
negotiating or acting upon any offers, or applying for any financing of
the same; and
Deliver to Purchaser copies of all Lease Documents entered into
after the date hereof and copies of all Proposals entered into after this
date (the "New Proposals").
after the date hereof through the Closing, Seller shall not, without
the prior written consent of Purchaser, which consent shall not be unreasonably
27
withheld, conditioned or delayed (except where such consent is deemed granted as
provided in this Agreement) (i) amend or modify any Lease Documents, the REOA or
Service Contracts (except as otherwise permitted hereunder) or enter into any
extensions or expansions thereunder; provided, however, that Seller shall be
permitted to enter into, and Purchaser shall be deemed to have approved and
consented to, and to have agreed to pay any Leasing Costs associated with, any
lease agreement or amendment that is required pursuant to an existing Lease or
memorializes the exercise of an existing right or option under an existing
Lease; (ii) cancel any of such Lease Documents, the REOA or Service Contracts,
or (iii) execute any new leases, operating agreements or service contracts
(except as otherwise permitted hereunder). Purchaser shall have five (5)
business days from its receipt of any New Proposal to notify Seller in writing
of its approval or rejection of any such New Proposal. If no such notice is
received by Seller within such period then Purchaser shall be deemed to have
approved any such New Proposal. Seller shall have the right to execute lease
documents evidencing an Existing Proposal or a New Proposal approved or deemed
approved by Purchaser as provided in this Agreement provided Seller's standard
lease form is utilized without material modifications.
Assignment. Purchaser shall not assign this Agreement without Seller's
prior written consent which consent may be withheld for any reason or no reason;
provided, however, that Purchaser shall have the right to assign this Agreement
without Seller's consent to an affiliate of Seller provided that the conditions
set forth in clauses (i) and (ii) below are satisfied in advance of such
assignment. Subject to the previous sentence, this Agreement shall apply to,
inure to the benefit of and be binding upon and enforceable against the parties
hereto and their respective successors and assigns. Sellerys consent to any such
assignment shall be conditioned upon Seller's receipt of the following not less
than five (5) business days prior to the Closing Date: (i) a duly executed
express assumption of all of the duties and obligations of Purchaser by the
proposed assignee in a form acceptable to Seller, and (ii) an ERISA certificate,
in the form of Exhibit H attached hereto and the content of which is
satisfactory to Seller.
Remedies.
IN THE EVENT THAT SELLER SHALL FAIL TO CONSUMMATE THIS AGREEMENT AND
SUCH FAILURE IS NOT A RESULT OF PURCHASER'S DEFAULT OR A TERMINATION OF THIS
AGREEMENT BY PURCHASER OR SELLER PURSUANT TO A RIGHT TO DO SO UNDER THE
PROVISIONS HEREOF, PURCHASER, IN THE CASE WHERE SUCH FAILURE IS BASED UPON A
BREACH BY SELLER ("SELLER'S DEFAULT"), SHALL ONLY BE ENTITLED TO SEEK AT ITS
ELECTION, EITHER: (A) THE REMEDY OF SPECIFIC PERFORMANCE IN WHICH EVENT
PURCHASER SHALL BE ENTITLED TO RECORD A LIS PENDENS OR NOTICE OF PENDENCY OF
ACTION AGAINST THE PROPERTY, OR (B) TERMINATION OF THIS AGREEMENT AND ACTUAL,
DIRECT DAMAGES IN AN AMOUNT NOT TO
28
EXCEED $2,000,000 IN THE AGGREGATE FOR ALL RECOURSE OF PURCHASER UNDER THE
PURCHASE DOCUMENTS (AS DEFINED IN SECTION 19 HEREOF) IN ADDITION TO THE RETURN
TO PURCHASER OF THE ▇▇▇▇▇▇▇ MONEY, PROVIDED THAT THIS PROVISION SHALL NOT LIMIT
PURCHASER'S RIGHTS TO PURSUE AND RECOVER ON A CLAIM WITH RESPECT TO ANY
SURVIVING OBLIGATIONS. IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER FOR ANY
PUNITIVE, SPECULATIVE OR CONSEQUENTIAL DAMAGES.
PURCHASER SHALL (A) NOTIFY SELLER OF ITS ELECTION TO SEEK THE
REMEDY OF SPECIFIC PERFORMANCE ON OR BEFORE THE DATE WHICH IS FORTY FIVE (45)
DAYS AFTER THE DATE OF A SELLER'S DEFAULT AND (B) INSTITUTE PROCEEDINGS SEEKING
SUCH REMEDY ON OR BEFORE THE DATE WHICH IS SIXTY (60) DAYS AFTER THE DATE OF
PURCHASER'S NOTICE.
PURCHASER SHALL BE DEEMED TO HAVE WAIVED ITS ELECTION TO SEEK THE
REMEDY OF SPECIFIC PERFORMANCE IF PURCHASER DOES NOT (x) NOTIFY SELLER OF SUCH
ELECTION AS PROVIDED IN SECTION 17(a)(ii) (A) HEREINABOVE , OR (y) INSTITUTE
PROCEEDINGS, SEEKING SUCH REMEDY AS PROVIDED IN SECTION 17(a)(ii)(B)
HEREINABOVE.
IN THE EVENT THAT PURCHASER SHOULD FAIL TO CONSUMMATE THIS AGREEMENT
FOR ANY REASON, EXCEPT SELLER'S DEFAULT OR THE TERMINATION OF THIS AGREEMENT BY
PURCHASER OR SELLER PURSUANT TO A RIGHT TO DO SO UNDER THE TERMS AND PROVISIONS
HEREOF, THEN SELLER, AS ITS SOLE AND EXCLUSIVE REMEDY MAY TERMINATE THIS
AGREEMENT BY NOTIFYING PURCHASER THEREOF AND RECEIVE AND RETAIN THE ▇▇▇▇▇▇▇
MONEY AS LIQUIDATED DAMAGES, PROVIDED THAT THIS PROVISION SHALL NOT LIMIT
SELLER'S RIGHT TO PURSUE AND RECOVER ON A CLAIM WITH RESPECT TO ANY SURVIVING
OBLIGATIONS. THE PARTIES AGREE THAT SELLER WILL SUFFER DAMAGES IN THE EVENT OF
PURCHASER'S DEFAULT ON ITS OBLIGATIONS. ALTHOUGH THE AMOUNT OF SUCH DAMAGES IS
DIFFICULT OR IMPOSSIBLE TO DETERMINE, THE PARTIES AGREE THAT THE AMOUNT OF THE
▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE OF SELLER'S LOSS IN THE EVENT OF
PURCHASER'S DEFAULT. THUS, SELLER SHALL ACCEPT AND RETAIN THE ▇▇▇▇▇▇▇ MONEY AS
LIQUIDATED DAMAGES BUT NOT AS A PENALTY. EXCEPT AS OTHERWISE SET FORTH IN THIS
SECTION 17(b), SUCH LIQUIDATED DAMAGES SHALL CONSTITUTE SELLER'S SOLE AND
EXCLUSIVE REMEDY.
SELLER AND PURCHASER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE
PROVISIONS OF THE FOREGOING LIQUIDATED
29
DAMAGES PROVISION AND BY THEIR SIGNATURES IMMEDIATELY BELOW AGREE TO BE BOUND BY
ITS TERMS.
SELLER: PURCHASER:
OAK VIEW MALL CORPORATION, OAK VIEW MALL L.L.C.,
a Delaware corporation a Delaware limited liability company
By: ______________________________ By: GENERAL GROWTH OAK VIEW
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President MALL, INC.,a Delaware
corporation, a member
By:
_________________________________
Name:
_________________________________
Title:
_________________________________
By: GGP LIMITED PARTNERSHIP,
a Delaware limited partnership,
a member
By: GENERAL GROWTH
PROPERTIES, INC.,
a Delaware corporation,
its general partner
By:
____________________________
Name:
____________________________
Title:
____________________________
Miscellaneous.
Entire Agreement. This Agreement, together with the exhibits attached
hereto, constitute the entire agreement of the parties hereto regarding the
purchase and sale of the Property, and all prior agreements, understandings,
representations and statements, oral or written, are hereby merged herein. In
the event of a conflict between the terms of this Agreement and any prior
written agreements, the terms of this Agreement shall prevail. This Agreement
may only
30
be amended or modified by an instrument in writing, signed by the party
intended to be bound thereby.
Time. All parties hereto agree that time is of the essence in this
transaction. If the time for performance of any obligation hereunder shall fall
on a Saturday, Sunday or holiday (national, in the State of Illinois or the
state in which the Property is located) such that the obligation hereby can not
be performed, the time for performance shall be extended to the next such
succeeding day where performance is possible.
Counterpart Execution. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER THE LAWS OF THE STATE OF ILLINOIS AND FOR ALL PURPOSES SHALL BE GOVERNED
BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
Publicity. Seller and Purchaser hereby covenant and agree that, at all
times after the date of execution hereof and continuing after the Closing,
unless consented to in writing by the other party, no press release or other
public disclosure concerning this transaction shall be made, and each party
agrees to use best efforts to prevent disclosure of this transaction.
Recordation. Purchaser shall not record this Agreement or a memorandum
or other notice thereof in any public office without the express written consent
of Seller. A breach by Purchaser of this covenant shall constitute a material
default by Purchaser under this Agreement.
Benefit. This Agreement is for the benefit of Purchaser and Seller, and
except as provided in the indemnities granted by Purchaser in this Agreement and
in the Purchase Documents (as defined in Section 19) with respect to the
Indemnified Parties listed therein, no other person or entity will be entitled
to rely on this Agreement, receive any benefit from it or enforce any provisions
of it against Purchaser or Seller.
Section Headings. The Section headings contained in this Agreement are
for convenience only and shall in no way enlarge or limit the scope or meaning
of the various and several Sections hereof.
Further Assurances. Purchaser and Seller agree to execute all documents
and instruments reasonably required in order to consummate the purchase and sale
herein contemplated.
31
Severability. If any portion of this Agreement is held to be
unenforceable by a court of competent jurisdiction, the remainder of this
Agreement shall remain in full force and effect.
Waiver of Trial by Jury. Seller and Purchaser, to the extent they may
legally do so, hereby expressly waive any right to trial by jury of any claim,
demand, action, cause of action, or proceeding arising under or with respect to
this Agreement, or in any way connected with, or related to, or incidental to,
the dealings of the parties hereto with respect to this Agreement or the
transactions related hereto or thereto, in each case whether now existing or
hereafter arising, and irrespective of whether sounding in contract, tort, or
otherwise. To the extent they may legally do so, Seller and Purchaser hereby
agree that any such claim, demand, action, cause of action, or proceeding shall
be decided by a court trial without a jury and that any party hereto may file an
original counterpart or a copy of this Section with any court as written
evidence of the consent of the other party or parties hereto to waiver of its or
their right to trial by jury.
Independent Counsel. Purchaser and Seller each acknowledge that: (a)
they have been represented by independent counsel in connection with this
Agreement; (b) they have executed this Agreement with the advice of such
counsel; and (c) this Agreement is the result of negotiations between the
parties hereto and the advice and assistance of their respective counsel. The
fact that this Agreement was prepared by Seller's counsel as a matter of
convenience shall have no import or significance. Any uncertainty or ambiguity
in this Agreement shall not be construed against Seller because Seller's counsel
prepared this Agreement in its final form.
Governmental Approvals. Nothing contained in this Agreement shall be
construed as authorizing Purchaser to apply for a zoning change, variance,
subdivision maps, lot line adjustment, or other discretionary governmental act,
approval or permit with respect to the Property prior to the Closing, and
Purchaser agrees not to do so. Purchaser agrees not to submit any reports,
studies or other documents, including, without limitation, plans and
specifications, impact statements for water, sewage, drainage or traffic,
environmental review forms, or energy conservation checklists to any
governmental agency, or any amendment or modification to any such instruments or
documents prior to the Closing. Purchaser's obligation to purchase the Property
shall not be subject to or conditioned upon Purchaser's obtaining any variances,
zoning amendments, subdivision maps, lot line adjustment or other discretionary
governmental act, approval or permit.
No Waiver. No covenant, term or condition of this Agreement other than
as expressly set forth herein shall be deemed to have been waived by Seller or
Purchaser unless such waiver is in writing and executed by Seller or Purchaser,
as the case may be.
32
Discharge and Survival. The delivery of the Deed by Seller, and the
acceptance thereof by Purchaser shall be deemed to be the full performance and
discharge of every covenant and obligation on the part of Seller to be performed
hereunder, except the obligations hereunder that expressly survive Closing. No
action shall be commenced after the Closing on any covenant or obligation,
except the obligations hereunder that expressly survive Closing.
Exculpation of Seller and Related Parties. Notwithstanding anything to the
contrary contained in this Agreement or in any exhibits attached hereto or in
any documents executed or to be executed in connection herewith (collectively,
including this Agreement, said exhibits and any such document, the "Purchase
Documents"), it is expressly understood and agreed by and between the parties
hereto that from and after the Closing: (i) the recourse of Purchaser or its
successors or assigns against Seller with respect to the alleged breach by or on
the part of Seller of any representation, warranty, covenant, undertaking,
indemnity or agreement contained in any of the Purchase Documents (collectively,
"Seller's Undertakings") shall (x) be deemed waived unless Purchaser has
delivered to Seller written notice that Purchaser is seeking recourse under
Seller's Undertakings after the Closing Date but prior to the date that is one
year after the Closing Date and Purchaser has filed suit with respect to same
within sixteen (16) months after the Closing Date, and (y) be limited to an
amount not to exceed $2,000,000 in the aggregate of all recourse of Purchaser
under the Purchase Documents; and (ii) no personal liability or personal
responsibility of any sort with respect to any of Seller's Undertakings or any
alleged breach thereof is assumed by, or shall at any time be asserted or
enforceable against, Seller or HCM, or against any of their respective
shareholders, directors, officers, employees, agents, constituent partners,
members, beneficiaries, trustees or representatives except as provided in (i)
above with respect to Seller.
Exculpation of Purchaser and Related Parties. Notwithstanding anything to
the contrary contained in this Agreement or in any exhibits attached hereto or
in any of the other Purchase Documents, it is expressly understood and agreed by
and between the parties hereto that from and after the Closing: (i) the recourse
of Seller against Purchaser with respect to the alleged breach by or on the part
of Purchaser of any representation, warranty, covenant, undertaking, indemnity
or agreement contained in any of the Purchase Documents (collectively,
"Purchaser's Undertakings") shall (x) be deemed waived unless Seller has
delivered to Purchaser written notice that Seller is seeking recourse under
Purchaser's Undertakings after the Closing Date but prior to the date that is
one year after the Closing Date and Seller has filed suit with respect to same
within sixteen (16) months after the Closing Date, and (y) be limited to an
amount not to exceed $2,000,000 in the aggregate of all recourse of Seller under
the Purchase Documents; and (ii) no personal liability or personal
responsibility of any sort with respect to any of Purchaser's Undertakings or
any alleged breach thereof is assumed by, or shall at any time be asserted or
enforceable against,
33
Purchaser or against any of its members or their respective shareholders,
directors, officers, employees, agents, constituent partners, members,
beneficiaries, trustees or representatives except as provided in (i) above with
respect to Purchaser; provided, however, that the foregoing exculpation shall
not apply with respect to breaches by Purchaser of its representations and
warranties contained in Sections 8.1, 8.2, 8.3 and 8.4 hereof, for which
Purchaser shall remain fully liable without limitation.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
made as of the day and year first above stated.
SELLER: PURCHASER:
OAK VIEW MALL CORPORATION, OAK VIEW MALL L.L.C.,
a Delaware corporation a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: GENERAL GROWTH OAK VIEW
--------------------------------- MALL, INC.,a Delaware
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President corporation, a member
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
Title: Chief Executive Officer
---------------------------
By: GGP LIMITED PARTNERSHIP,
a Delaware limited partnership,
a member
By: GENERAL GROWTH
PROPERTIES, INC.,
a Delaware corporation,
its general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------
Title: Chief Executive Officer
------------------------