ANNEX VI
ASSIGNMENT OF PURCHASE AND SALE AGREEMENT
THIS ASSIGNMENT OF PURCHASE AND SALE AGREEMENT (this
"Assignment") is made and entered into as of the ________ day of
November, 1999 by and between XXXXXX PACIFIC GROUP, INC., a Delaware
corporation ("Assignor") and CRANBERRY PROPERTIES MM CORP., a Delaware
corporation ("Assignee").
RECITALS
Shopco Malls L.P., a Delaware limited partnership, as seller
("Seller"), and Assignor, as buyer, entered into that certain Agreement
of Purchase and Sale dated September 11, 1999, as amended by the First
Amendment to the Agreement of Purchase and Sale dated as of October 28,
1999 (as so amended, the "Purchase Agreement") in respect of the purchase
and sale of that certain property known as Cranberry Mall (located in
Xxxxxxx County, Maryland). All capitalized terms not otherwise defined
in this Assignment shall have the meaning given them in the Purchase
Agreement.
Assignor desires to assign all of its right, title and
interest in the Purchase Agreement to Assignee.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
A. Assignment of the Assigned Interest. Assignor hereby assigns,
sells and transfers to Assignee, and Assignee hereby assumes, all of
Assignor's rights (including, without limitation, all of Assignor's
indemnification rights under Article XI of the Purchase Agreement,
(provided that Assignor reserves from this Assignment sufficient rights
to seek and obtain indemnification from Seller arising under the Purchase
Agreement if required) and obligations (other than Assignor's
indemnification obligations under Article XI of the Purchase Agreement
arising out of matters or events that occurred prior to the date of
hereof) under the Purchase Agreement (collectively, the "Assigned
Interest"). If Assignee closes the purchase of the Asset, Assignee
agrees to indemnify Assignor in regard to any claim made by Seller under
the Purchase Agreement as to the post-assignment period, except as the
same may arise on account of Assignor's conduct.
B. Assignment of the Asset File. Assignor hereby assigns and
transfers to Assignee all of Assignor's interest in and to any documents
or instruments that were delivered by the Seller to Assignor in
connection with the Purchase Agreement, including, without limitation,
the Asset File.
C. Payment of Initial Xxxxxxx Money. With Seller's permission,
Assignor has not yet paid to Seller the Initial Xxxxxxx Money in the
amount of $200,000, as required by Section II.2(b)(i) of the Purchase
Agreement; however, concurrently with the execution and delivery of this
Assignment and the consent thereto by Seller, Assignee is delivering the
Initial Xxxxxxx Money to Escrow Agent. Assignor hereby acknowledges that
it has no right, title or interest in the Initial Xxxxxxx Money.
D. Representations and Warranties of Assignor. Assignor hereby
represents and warrants to Assignee as follows:
1. Assignor is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware
and has the full power and authority to execute and deliver
the Purchase Agreement and this Assignment. The person
executing and delivering this Assignment on behalf of Assignor
has full corporate power and authority to execute and deliver
this Assignment on behalf of Assignor. Except for Seller's
consent, which it attached hereto, Assignor has obtained all
necessary third party consents in connection with the
execution and delivery of the Purchase Agreement and this
Assignment.
2. Attached hereto as Exhibit A is a true, complete and correct
copy of the Purchase Agreement and there have been no further
amendments, revisions or modifications (oral or written) to
such documents.
3. The Purchase Agreement is in full force and effect and neither
party thereto is in default of its obligations thereunder.
Without limiting the generality of the foregoing, to the best
knowledge of Assignor, all of the representations and
warranties of Seller in the Purchase Agreement are true and
correct.
4. Assignor holds one hundred (100%) percent of the legal and
beneficial title to the Assigned Interest and has not pledged,
encumbered, transferred or hypothecated (or entered into any
agreement (oral or written) pursuant to which it has agreed to
pledge, transfer, encumber or hypothecate) the Assigned
Interest in any manner whatsoever.
5. Except as set forth in Schedule 1 attached hereto, Assignor
has not received any notice from Seller pursuant to Section
III.3 of the Purchase Agreement with respect to, among other
things, any (i) third party contracts after the execution date
of the Purchase Agreement; (ii) Space Leases and/or Temporary
Leases other than those disclosed in the Purchase Agreement;
or (iii) litigation, arbitration proceeding or administrative
hearing (including condemnation). Except as set forth in said
Schedule 1, Assignor knows of no other changes in any Space
Lease or Temporary Lease occurring since the Purchase
Agreement was signed.
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E. Indemnification. If Seller exercises its rights pursuant to
any indemnification provision in the Purchase Agreement (including,
without limitation, those set forth in Article VII (Inspections) and
Section XIV.2 (Brokers)), responsibility therefor is allocated as
follows:
1. Inspections: Each party, i.e., Assignor or Assignee, shall be
responsible for its conduct, and the conduct of its employees,
agents and contractors incurred in respect to the inspections.
2. Brokers. Each party, i.e., Assignor or Assignee, shall be
responsible to Seller for any broker involved in the
transaction to which Seller has not agreed to pay a
transaction fee or commission.
3. Other Indemnification. In respect to all other claims of
indemnification by Seller under the Agreement, Assignor and
Assignee shall each be liable for its own acts (and the acts
of its employees, agents and contractors).
Based upon the allocation of responsibility hereinabove described,
to the extent that either Assignor or Assignee is responsible
therefor, the responsible party agrees to indemnify the other party
and the other party's affiliates, members, partners, and the
partner, shareholders, officers, directors, employees,
representatives and agents of each of the foregoing from any losses
incurred by the indemnified party (i.e., Assignor or Assignee) for
which the indemnified party is not responsible based on the
allocation of responsibility described above. The foregoing
obligations shall survive the Closing or the termination of the
Assignment, as the case may be.
F. Counterparts. This Assignment may be executed in any number
of counterparts, each of which shall be deemed an original and all of
which taken together shall constitute one and the same instrument.
G. Binding Effect. This Assignment shall be binding upon and
insure to the benefit of the parties hereto and their respective personal
representatives, administrators, successors and assigns.
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IN WITNESS WHEREOF, Assignee and Assignor have executed this
Assignment as of the day and year first above written.
ASSIGNOR:
XXXXXX PACIFIC GROUP, INC.
By: ______________________________________
ASSIGNEE:
CRANBERRY PROPERTIES MM CORP.
By: ______________________________________
Escrow Agent is hereby executing this Assignment solely for
the purpose of acknowledging its receipt of the Initial Xxxxxxx Money.
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE COMPANY
By: ______________________________________
Name:
Title:
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IN WITNESS WHEREOF, Assignee and Assignor have executed this
Assignment as of the day and year first above written.
ASSIGNOR:
XXXXXX PACIFIC GROUP, INC.
By: ______________________________________
ASSIGNEE:
CRANBERRY PROPERTIES MM CORP.
By: ______________________________________
Escrow Agent is hereby executing this Assignment solely for
the purpose of acknowledging its receipt of the Initial Xxxxxxx Money.
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE COMPANY
By: ______________________________________
Name:
Title:
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SCHEDULE 1 TO ASSIGNMENT
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SELLER'S CONSENT
The undersigned is executing this Consent on this ____ day of November,
1999 in connection with that certain Assignment of Purchase and Sale
Agreement (the "Assignment") of even date herewith between Xxxxxx Pacific
Group, Inc. ("Assignor"), as assignor, and Cranberry Properties MM Corp.
("Assignee"), as assignee, in respect of that certain Agreement of
Purchase and Sale dated September 11, 1999 between the undersigned, as
seller, and Assignor, as buyer, as amended by the First Amendment to the
Agreement of Purchase and Sale dated as of October 28, 1999 (as so
amended, the "Purchase Agreement") in respect of the purchase and sale of
that certain property known as Cranberry Mall (located in Xxxxxxx County,
Maryland). All capitalized terms not otherwise defined in this Consent
shall have the meaning given them in the Purchase Agreement. Seller
hereby confirms the following:
1. Seller acknowledges that it has reviewed the memoranda
regarding the Existing Title Report and any updated title
reports, attached hereto as Exhibits 1 and 2, respectively,
and further acknowledges that said memoranda were timely
received. Seller agrees to work with Assignee to promptly
resolve the title matters discussed in said memoranda.
Notwithstanding the foregoing and notwithstanding anything to
the contrary in Article VIII.2 of the Purchase Agreement,
Seller hereby agrees that Assignee's rights to deliver notice
of any additional objections to title set forth in the
Existing Title Policy, Existing Survey, and any updated title
report and survey shall be extended until the Due Diligence
Expiration Date; and
2. Except as set forth in Schedule 1 attached hereto, Seller has
not sent any notice to Assignor pursuant to Section III.3 of
the Purchase Agreement with respect to, among other things,
any (i) third party contracts after the execution date of the
Purchase Agreement; (ii) Space Leases and/or Temporary Leases
other than those disclosed in the Purchase Agreement; or (iii)
litigation, arbitration proceeding or administrative hearing
(including condemnation). Seller further acknowledges and
agrees that Assignee shall not be deemed to have approved any
of the matters set forth on said Schedule 1 until five (5)
business days after the date of the Assignment.
3. Notwithstanding anything to the contrary in the Purchase
Agreement, Seller acknowledges and agrees that the Due
Diligence Expiration Date shall be November 29, 1999, 5:00
p.m. E.S.T. Notice with respect to the Due Diligence
Expiration Date and any other notices under the Purchase
Agreement may be sent by (i) personal delivery, (ii) prepaid,
national overnight courier or (iii) facsimile, with a hard
copy to follow by the manner of delivery set forth in the
preceding clauses and shall be deemed given and received as
set forth in the Purchase Agreement, except that any notice
sent by facsimile shall be deemed delivered on the date sent,
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provided that confirmation of same is received by the sender.
Seller further acknowledges that any notices sent to Buyer
under the Purchase Agreement from and after the date of this
Consent shall be sent to: (1) Cranberry Properties MM Corp.,
c/o Strategic Resources Corporation, 000 Xxxx 00xx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Facsimile Number: (212)
399-3128), Attention: Xxxxxxxx X. Xxxxx and Xxxxxx X. Xxxxxxx,
with a copy to Battle Xxxxxx LLP, 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (Facsimile Number: (000) 000-0000),
Attention: Xxxxxx X. Xxxxxxxxxx, Esq. and (2) Xxxxxx Pacific
Group, Inc., 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000 (Facsimile No.: (000) 000-0000), Attn:
Xxxxxxx Xxxxxx, with a copy to Xxxxxx & Xxxxxx, 000 Xxxxxxxx,
Xxxxxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000-0000 (Facsimile
No.: (000) 000-0000), Attn: Xxxxxx X. Xxxxxx.
SHOPCO MALLS L.P.
By: Shopco Regional Malls, L.P.
By: Regional Malls, Inc.
By: __________________________
Name:
Title:
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[FN]
Copies of all letters, memoranda and other correspondence regarding
the Space Leases, the Temporary Leases and any other matters that have
been received by Assignor from and after September 11, 1999 pursuant to
Article III.3 of the Purchase Agreement.
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