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EXHIBIT 2.10
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT is dated as of November 10, 1999, by and
between THE COMPTROLLER OF THE STATE OF NEW YORK AS TRUSTEE OF THE COMMON
RETIREMENT FUND, ("SELLER"), and GGP/HOMART II L.L.C., a Delaware limited
liability company (the "COMPANY").
RECITALS
WHEREAS, Seller owns 100% of the membership interests in Alderwood Mall
L.L.C. ("AMLLC"), a Delaware limited liability company, the owner of 100% of the
stock of Acquiport Seven Corporation, a Delaware corporation, (the "ORIGINAL
VENTURE");
WHEREAS, the Original Venture is the owner of the real property
commonly known as Alderwood Mall, Seattle, Washington ("ALDERWOOD MALL") which
is more particularly described on Exhibit A attached hereto, other than the
property owned by the Anchors (as hereinafter defined) at such mall;
WHEREAS, Seller intends to cause the Original Venture to convey fee
title to Alderwood Mall to AMLLC, together with all leases, operating
agreements, contracts and other assets;
WHEREAS, Seller desires to contribute to the capital of the Company all
of its membership interest in AMLLC, and the Company desires to acquire such
interests.
NOW, THEREFORE, in consideration of the mutual covenants, conditions
and agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
ARTICLE I.
DEFINITIONS
1.1. For purposes of this Agreement, the following terms shall have
the meanings indicated below:
"ADA" shall mean the Americans With Disabilities Act, as amended.
"AFFILIATE" shall mean a Person that directly or indirectly through one
or more intermediaries controls, is controlled by, or is under common control
with the Person specified. The term "control" as used in the immediately
preceding sentence, means (a) the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of the
controlled entity or (b) the ownership (directly or indirectly) of not less than
50% of the voting stock of a corporation or not less than 50% of the aggregate
legal and equitable interest in a limited liability company, a partnership or
other business entity.
"AGREEMENT" shall mean this Contribution Agreement, as amended or
modified from time to time hereafter in accordance with the terms hereof.
"AMLLC" shall mean Alderwood Mall L.L.C., a Delaware limited liability
company.
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"ANCHOR" shall mean each Person identified in SCHEDULE 1.1-1.
"ASSUMED LIABILITIES" shall have the meaning set forth in Section
2.3(a).
"AUDITOR" shall have the meaning set forth in Section 5.2(b).
"BALANCE SHEET SETTLEMENT DATE" shall have the meaning set forth in
Section 5.1(c).
"BOOKS AND RECORDS" shall mean all records, books of account and papers
of the Original Venture relating to the construction, ownership and operations
of the Property, including architect's drawings, blue prints and as-built plans,
maintenance logs, copies of warranties and guaranties, licenses and permits,
instruction books, employee manuals, records and correspondence relating to
insurance claims, financial statements, operating budgets, paper and electronic
media copies of data and other information relating to the Property available
from personal computers, structural, mechanical, geotechnical or other
engineering studies, soil test reports, environmental reports, underground
storage tank reports, feasibility studies, appraisals, ADA surveys or reports,
OSHA asbestos surveys, marketing studies, mall documents and compilations, lease
summaries and originals and/or copies of Leases, the REA and the Contracts and
correspondence related thereto.
"CLOSING" shall have the meaning set forth in Section 4.1.
"CLOSING BALANCE SHEETS" shall have the meaning set forth in Section
5.1(a).
"CLOSING DATE" shall have the meaning set forth in Section 4.1.
"CLOSING DOCUMENTS" shall mean the Seller Closing Documents and the
Company Closing Documents, collectively.
"CLOSING NET EQUITY" shall mean, in the case of the Preliminary
Proration Date Balance Sheet or Proration Date Balance Sheet, the excess of the
book value of the assets reflected on such balance sheet over the liabilities
reflected thereon.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"COMPANY CLOSING DOCUMENTS" shall have the meaning set forth in Section
4.3.
"CONTRACTS" shall mean all equipment leases and all service,
maintenance and other contracts and concessions that are currently in effect and
to which the Original Venture is a party respecting the use, maintenance,
development, sale or operation of the Property or any portion thereof (but
excluding this Agreement, the Leases, the Permitted Exceptions and the REA)
including those which are listed on SCHEDULE 6.1(i), together with any additions
thereto, modifications thereof or substitutions therefor hereafter entered into
in accordance with the provisions of this Agreement.
"CONTRIBUTION AMOUNT" shall have the meaning set forth in Section 2.2.
"DEFECT" shall mean any Lien, encumbrance, easement, agreement,
restriction, proceeding, lis pendens, notice, encroachment or exception to title
other than a Permitted Exception that materially and adversely affects the title
to or use of the Property.
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"ENVIRONMENTAL LAWS" shall mean all federal, state and local statutes,
ordinances, codes, rules, regulations, orders and decrees regulating, relating
to or imposing liability or standards concerning or in connection with Hazardous
Materials, underground storage tanks or the protection of human health, natural
resources or the environment, as any of the same may be amended from time to
time, including the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. ss.9601 et. seq., as amended by the
Superfund Amendments and Reauthorization Act or any equivalent state or local
laws or ordinances; the Resource Conservation and Recovery Act ("RCRA"), 42
U.S.C. ss. 6901 et seq., as amended by the Hazardous and Solid Waste Amendments
of 1984, or any equivalent state or local laws or ordinances; the Federal
Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. ss.136 et. seq.
or any equivalent state or local laws or ordinances; the Hazardous Materials
Transportation Act (49 U.S.C. ss. 1801 et seq.); the Emergency Planning and
Community Right-to-Know Act ("EPCRA"), 42 U.S.C. ss.11001 et. seq. or any
equivalent state or local laws or ordinances; the Toxic Substance Control Act
("TSCA"), 15 U.S.C. ss.2601 et. seq. or any equivalent state or local laws or
ordinances; the Atomic Energy Act, 42 U.S.C. ss.2011 et. seq., or any equivalent
state or local laws or ordinances; the Clean Water Act (the "Clean Water Act"),
33 U.S.C. ss.1251 et. seq. or any equivalent state or local laws or ordinances;
the Clean Air Act (the "Clean Air Act"), 42 U.S.C. ss.7401 et seq. or any
equivalent state or local laws or ordinances; the Occupational Safety and Health
Act, 29 U.S.C. ss.651 et seq. or any equivalent state or local laws or
ordinances.
"EXISTING MANAGER" shall mean General Growth Management, Inc.
"EXECUTION DATE" shall mean the date of this Agreement.
"FINANCIAL STATEMENTS" shall have the meaning set forth in Section
6.1(v).
"GAAP" shall mean generally accepted accounting principles in the
United States of America in effect from time to time.
"GAAS" shall mean Generally Accepted Auditing Standards as promulgated
by the Auditing Standards Division of the American Institute of Certified Public
Accountants from time to time.
"GOVERNMENTAL AUTHORITY" shall mean any federal, state or local
government, court, department, commission, board and office having jurisdiction
over the Property, Seller, AMLLC, Original Venture or the Company, or any other
body exercising functions similar to those of any of the foregoing.
"HAZARDOUS MATERIALS" shall mean any substance, material, waste, gas or
particulate matter which (i) is now, or at any future time may be, regulated by
the United States Government, the state in which the Real Property is located,
any other state with jurisdiction, or any local governmental authority, or (ii)
the exposure to, or manufacture, possession, presence, use generation, storage,
transportation, treatment, release, disposal, abatement, cleanup, removal,
remediation or handling of is prohibited, controlled or regulated by any
Environmental Law, or (iii) requires investigation or remediation under any
Environmental Law or common law, or (iv) is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise
hazardous. Such term includes any material or substance which is (1) defined as
a "hazardous waste," "hazardous material," "hazardous substance," "extremely
hazardous
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waste," "restricted hazardous waste" or any like or similar term under
any applicable Environmental Law; (2) oil and petroleum products; (3) asbestos
or asbestos-containing material as defined in the regulations of the
Occupational Safety and Health Administration at 29 C.F.R. ss.1910.1001; (4)
polychlorinated biphenyls; (5) radioactive material; (6) designated as a "toxic
pollutant" or a "hazardous substance" pursuant to Sections 307 or 311 of the
Clean Water Act; (7) defined as a "hazardous waste" pursuant to Section 1004 of
RCRA; (8) defined as a "hazardous substance" pursuant to Section 101 of CERCLA;
(9) designated as a "hazardous chemical" substance or mixture pursuant to TSCA;
(10) designated as an "extremely hazardous" substance under Section 302 of
EPCRA; (11) designated as a "priority pollutant" or "hazardous air pollutant"
pursuant to the Clean Air Act; (12) designated as a hazardous chemical under the
Occupational Safety and Health Act; (13) radon gas or other radioactive source
material, including special nuclear material, and byproduct materials regulated
under the Atomic Energy Act, 42 U.S.C. ss.2011 et. seq.; (14) subject to
regulation under FIFRA; (15) natural gas, natural gas liquids, liquefied natural
gas, and synthetic gas usable for fuel; or (16) infectious wastes or materials
and pathogenic bacteria or other pathogenic microbial agents.
"IMPROVEMENTS" shall mean improvements, buildings, structures,
fixtures, facilities, installations, machinery and equipment, in, on, over or
under the Land, including the foundations and footings therefor, elevators,
plumbing, air conditioning, heating, ventilating, mechanical, electrical and
utility systems (except to the extent owned by a utility company) and any other
similar systems, signs and light fixtures (except to the extent of trade
fixtures and equipment owned by tenants under the Leases), doors, windows,
fences, parking lots, walks and walkways and each and every other type of
physical improvement to the extent owned, in whole or in part, by the Original
Venture, located at, on or affixed to the Land, to the full extent such items
constitute or are or can or may be construed as realty under the laws of the
state in which the Real Property is located.
"INDEMNIFIED COMPANY PERSONS" shall have the meaning set forth in
Section 8.1.
"INDEMNIFIED PARTY" shall have the meaning set forth in Section 8.3.
"INDEMNIFIED SELLER PERSONS" shall have the meaning set forth in
Section 8.2.
"INDEMNIFYING PARTY" shall have the meaning set forth in Section 8.3.
"LAND" shall mean those certain parcels of real estate described on
EXHIBIT A.
"LANDLORD WORK" shall mean all work, improvements, fixtures, fittings
and equipment (other than normal repairs, maintenance or replacements) that are
required (or may in the future be required to be furnished or provided to
Tenants or REA Parties or paid for by landlord or developer under the terms of
the Leases or the REA, as in effect on the date hereof.
"LEASES" shall mean all leases, tenancies, concessions, licenses and
occupancy agreements currently in effect and to which the Original Venture or
any of its predecessors in title is a party affecting or relating to the
Property including those which are listed on SCHEDULE 6.1(g), together with any
additions thereto, modifications thereof or substitutions therefor hereafter
entered into in accordance with the provisions of this Agreement.
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"LEGAL REQUIREMENTS" shall mean any laws, ordinances, orders, rules,
regulations and requirements of any Governmental Authority which may be
applicable to the Property, AMLLC, the Original Venture or Seller.
"LIENS" shall mean any mortgages, deeds of trust, security interests,
judgments or charges, pledges, options, rights of first offer or first refusal,
liens of any type, restrictions, claims and other encumbrances of any nature
whatsoever.
"LIEN SEARCHES" shall mean a search report by an independent search
firm reasonably acceptable to the Company of the Secretary of State records,
county recorder records, local court records (federal, state, county and
municipal) and such other official public records with respect to the Property
that would disclose the presence of any Liens, bankruptcy proceedings, lis
pendens or other matters affecting the Property, the Original Venture or Seller.
"LOSSES" shall mean any and all claims, actions, suits, proceedings,
demands, losses, damages, liabilities, obligations, judgments, settlements,
awards, penalties, costs or expenses, including reasonable attorneys', experts'
or consultants' fees and expenses.
"OPERATING AGREEMENT" shall mean that certain Operating Agreement among
the Company, Seller and GGP Limited Partnership dated as of the date hereof.
"ORIGINAL VENTURE" shall mean Acquiport Seven Corporation, a Delaware
corporation.
"PARTY" shall mean a party to the REA, a Contract or Permitted
Exception Document (or the successor or assignee thereof) or a Tenant under a
Lease, in each case other than AMLLC, the Original Venture or its predecessors
in title with respect to the Property.
"PERMITTED EXCEPTIONS" shall mean the exceptions to title to the
Property listed on EXHIBIT B attached hereto and made a part hereof.
"PERMITTED EXCEPTION DOCUMENT" shall have the meaning set forth in
Section 2.3(b).
"PERSON" shall mean any individual, corporation, partnership, limited
liability company, governmental unit or agency, trust, estate or other entity of
any type.
"PERSONALTY" shall mean all of the personal property, both tangible and
intangible, owned by the Original Venture and AMLLC (and the Original Venture's
and AMLLC's interest in any of the following) and located in or upon or used in
connection with the operation or maintenance of the Property, including
machinery; equipment; building supplies and materials; consumables; inventories;
names, logos, trademarks, trade names and copyrights; all assignable licenses,
permits, approvals, authorizations, variances, consents and certificates of
occupancy; all assignable guarantees or warranties (including performance bonds
obtained by, or for the benefit of, the Original Venture, pertaining to the
ownership, construction or development of the Real Property or any part
thereof); the Books and Records; computer and peripheral equipment; computer
software and data contained in hard drives and on diskette; advertising
materials; and telephone exchange numbers. Without limiting the foregoing,
"Personalty" shall include the property listed on SCHEDULE 1.1-2. Personalty
shall not include: (a) personal items belonging to Tenants, employees of AMLLC
or the Original Venture and (b) the rights of the Original Venture or AMLLC in
and to the Leases, the REA and the Contracts.
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"PRELIMINARY PRORATION DATE BALANCE SHEET" shall have the meaning set
forth in Section 5.1(a).
"PROMOTIONAL ASSOCIATION" shall have the meaning set forth in Section
6.1(l).
"PROPERTY" shall mean (a) the Real Property, (b) the Personalty, (c)
the rights and interests of AMLLC in, to and under all Leases, (d) the rights
and interests of AMLLC in, to and under the REA, and (e) the rights and
interests of AMLLC in, to and under the Contracts to the extent assignable.
"PRORATION DATE" shall mean November 30, 1999.
"PRORATION DATE BALANCE SHEET" shall have the meaning set forth in
Section 5.1(a).
"REAL PROPERTY" shall mean the Land and the Improvements, together with
all of the estate, right, title and interest of AMLLC therein, and in and to (a)
any land lying in the beds of any streets, roads or avenues, open or proposed,
public or private, in front of or adjoining the Land to the center lines
thereof, and in and to any awards to be made in lieu thereof and in and to any
unpaid awards for damage to the foregoing by reason of the change of grade of
any such streets, roads or avenues; and (b) all easements, rights, licenses,
privileges, rights-of-way, strips and gores, hereditaments and such other real
property rights and interests appurtenant to the foregoing (including all rights
of AMLLC under the REA).
"REA" shall mean that certain Operating Agreement dated as of November
13, 1979 by and among Alstores Realty Corporation ("Alstores"), Allied Stores
Corporation ("Bon"), Nordstrom, Inc. ("Nordstrom"), Nordstrom Realty, Inc.
("Nordstrom Realty"), X.X. Xxxxxx Properties, Inc. ("Penney"), Lamonts Apparel,
Inc. ("Lamonts"), Sears Xxxxxxx and Co. ("Sears") and Alderwood Associates
("Developer"), as amended by that certain First Amendment to Operating Agreement
dated as of May 8, 1980 by and among Alstores, Bon, Nordstrom, Nordstrom Realty,
Penney, Lamonts, Sears and Developer dated May 8, 1980, as supplemented by that
certain (i) Supplement to Operating Agreement by and between Alstores, Bon and
Developer dated November 13, 1979, (ii) Supplement to Operating Agreement by and
between Lamonts and Developer, dated November 13, 1979, (iii) Supplement to
Operating Agreement by and between Nordstrom Realty and Developer, dated
November 13, 1979, (iv) Supplement to Operating Agreement by and between Penney
and Developer, dated November 13, 1979, (v) Supplement to Operating Agreement by
and between Sears and Developer dated November 13, 1979, together with any
additions thereto, modifications thereof or substitutions therefor hereafter
entered into in accordance with the provisions of this Contribution Agreement.
"REGULATIONS" shall mean the final, temporary or proposed Income Tax
Regulations promulgated under the Code, as such regulations may be amended from
time to time (including corresponding provisions of succeeding regulations).
"RENT ROLL" shall have the meaning set forth in Section 6.1(e).
"RENTS" shall mean fixed, minimum, additional, percentage and overage
rents, common area maintenance charges, advertising and promotional fees,
insurance charges, rubbish removal charges, sprinkler charges, shoppers aid
charges,
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water charges, utility charges, HVAC charges, amounts payable with respect to
real estate and any other taxes, and other amounts payable by any Party under
the Leases and the REA.
"SELLER CLOSING DOCUMENTS" shall have the meaning set forth in Section
4.2.
"SELLER'S INTEREST" shall mean the entire interest of Seller as the
sole member of AMLLC, together with all rights, obligations and powers of Seller
as the sole member of AMLLC.
"SELLER'S LIABILITIES" shall have the meaning set forth in Section
2.3(b).
"SURVEY" shall mean the Urban ALTA/ACSM Land Title Survey of the
Property by Xxxx, Xxxx & Xxxxxxxxx, Inc., Job #98164.01, last revised 10/28/99.
"TENANTS" shall mean tenants, concessionaires, licensees and/or
occupants under the Leases.
"TENANT SERVICES" shall mean all services supplied by or on behalf of
the Original Venture to Tenants for which Tenants are separately charged, other
than services in the nature of common area maintenance.
"THIRD PARTY CLAIM" shall have the meaning set forth in Section 8.3(a).
"TITLE COMMITMENT" shall mean the Proforma Policy of Title Insurance
No. 527226A issued by the Title Company to AMLLC dated November 4, 1999,
together with copies of all documents underlying all exceptions to title and all
encumbrances on and other matters of record affecting the Real Property.
"TITLE COMPANY" shall mean Commonwealth Land Title Insurance Company.
"TITLE POLICY" shall mean Owner's Policy of Title Insurance to be
issued by Title Company and effective the date hereof, insuring AMLLC as owner
of good, marketable and indefeasible fee title to the Property, subject only to
the Permitted Exceptions.
"TRANSACTIONS" shall mean the transactions contemplated by this
Agreement.
"UTILITY DEPOSITS" shall have the meaning set forth in Section 5.8.
1.2. References. All references in this Agreement to particular
sections or articles shall, unless expressly otherwise provided, or unless the
context otherwise requires, be deemed to refer to the specific sections or
articles in this Agreement, and any references to "Exhibit" shall, unless
otherwise specified, refer to one of the exhibits annexed hereto and, by such
reference, be made a part hereof. The words "herein", "hereof", "hereunder",
"hereinafter", "hereinabove" and other words of similar import refer to this
Agreement as a whole and not to any particular section, subsection, paragraph or
article hereof. The words "include", "includes" and "including" shall be deemed
in each case to be followed by the phrase "without limitation".
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1.3. Terms Generally. Definitions in this Agreement apply equally
to both the singular and plural forms of the terms defined. Whenever the context
may require, any pronoun shall include the corresponding masculine, feminine and
neuter forms.
ARTICLE II.
CONTRIBUTION
2.1. Contribution of Seller's Interest. Upon the terms and subject
to the conditions contained herein, at the Closing, Seller shall contribute to
the Company, and the Company shall acquire, Seller's Interest, free and clear of
all Liens. The Seller's Interest shall be deemed to have a fair market value
equal to $162,000,000.00, which represents the fair market value of the
Property, plus or minus Closing Net Equity as set forth on the Preliminary
Proration Date Balance Sheet (such amount, as the same is adjusted as
hereinafter provided, the Contribution Amount"). The $162,000,000.00 amount set
forth above reflects an $8,000,000 adjustment in the fair market value of the
Property to reflect the parties' agreement that Seller is making no
representation about and shall have no liability with respect to, any
allegations made by X.X. Penney or any other Anchor that the construction of the
food court located on the Property was in violation of the REA.
2.2. Consideration. In consideration for the contribution of
Seller's Interest and certain other property being contributed to the capital
of the Company by Seller, and in addition to the assumption of liabilities and
adjustments as hereinafter provided, on the Closing Date, Seller shall receive
units of membership interest in the Company pursuant to the Operating Agreement.
2.3. Liabilities.
(a) AMLLC shall be liable and responsible for all liabilities
and obligations of AMLLC and the Original Venture, including all liabilities and
obligations arising out of any claim by any Anchor that the construction of the
food court located on the Real Property was made without the required consent of
any such Anchor, other than the Seller's Liabilities (the "ASSUMED
LIABILITIES"). Further, without limiting the foregoing, Assumed Liabilities
shall include all leasing costs, allowances, concessions, rent abatements,
build-out costs, other leasing inducements and leasing commissions with respect
to all leases executed on or after September 1, 1999.
(b) Seller shall be responsible for all of the following
liabilities or obligations of AMLLC, the Original Venture, Seller or any
predecessor of any of them (collectively, the "SELLER PARTIES") or other Person
specified below (collectively, the "SELLER'S LIABILITIES"): (i) any liability or
obligation that is not related to the Property, (ii) any liability or obligation
that arises from contracts or agreements other than the Leases, the Contracts,
the REA or the instruments or agreements constituting the Permitted Exceptions
(a "PERMITTED EXCEPTION DOCUMENT") (except to the extent AMLCC accepts the
benefit thereof, (iii) any tort liability arising from any accident, injury,
event, circumstance, action or omission occurring prior to the Closing Date
(except to the extent of the insurance proceeds received by the Original Venture
in connection therewith), whether or not asserted before or after the Closing,
(iv) any liability or obligation to a Party for breach of, or other payment
obligation under, a Lease, REA (other than those relating to the food court
referred to in Section 2.3(a)), Contract or Permitted Exception Document
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(including any claimed overcharge of common area maintenance or other similar
charges but excluding the items covered in clause (v)) to the extent that the
liability or obligation relates to the period or accrued prior to the Closing
Date, whether or not asserted before or after the Closing, (v) all leasing
costs, costs of Landlord Work (net of the value of any additional revenues that
are to be received by AMLCC and are directly attributable to the Landlord Work),
allowances, concessions, rent abatements, build-out costs, other leasing
inducements and leasing commissions, with respect to all leases executed prior
to September 1, 1999, (vi) any fine, penalty or other amount that is imposed or
assessed by or which was payable to (including any installment thereof) a
Governmental Authority for the period prior to the Closing Date, whether or not
imposed or assessed before or after the Closing, (vii) all federal, state and
local taxes of any Seller Party of whatever kind and nature relating to the
period prior to Closing, (viii) liabilities and obligations relating to any
employees (current or former), employee benefit plans or collective bargaining
agreements of the Existing Manager or any Seller Party that accrued, relate to
or arise from any incident, event, circumstance, action or omission occurring
during the period through the Closing Date, including severance pay and accrued
vacation pay obligations and other liabilities of the Existing Manager, any
Seller Party, the Company or others relating to the termination of any of such
employees prior to the Closing or as the result of the consummation of the
Transactions, (ix) any liability or obligation to pay for work performed at, or
materials supplied or delivered to, the Property prior to the Closing, (x) any
liability or obligation relating to litigation that is commenced by Persons
other than Parties or Governmental Authorities and that relates to incidents,
events, circumstances, actions or omissions occurring during the period prior to
Closing, whether or not asserted before or after the Closing and (xi) any other
costs or liabilities imposed on Seller hereunder or under the Operating
Agreement. Notwithstanding anything to the contrary contained herein, Seller's
Liabilities shall not include (i) any liabilities or obligations to the extent
that the Company has received a credit therefor under the provisions of Article
V and (ii) subject to the provisions of Section 2.3(c), the cost of repair,
remediation or correction of any physical defect in the Property (but do include
damages, fines or other amounts owing to Parties, Governmental Authorities or
others on account of any such physical defect to the extent that such damages,
fines or other amounts are not for the cost of repair, remediation or correction
thereof).
(c) Nothing contained in this Section 2.3 shall impair the
rights of the Company for a breach of any representation or warranty contained
herein or in the Seller Closing Documents.
ARTICLE III.
COSTS AND EXPENSES
3.1. Title and Survey Costs. Title and Survey costs shall be paid
as follows:
(a) The Company shall pay the cost of obtaining the Title
Commitment and the cost of recording any documents required to release, cure or
remove Defects;
(b) The Company shall pay the cost of obtaining the Survey;
(c) The Company shall pay the cost of recording any other
documents;
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(d) Subject to any separate agreement between Seller and the
Company, the Company shall be solely responsible for the payment of any real
property transfer taxes levied or imposed upon Seller, AMLLC, the Original
Venture or the Property as a result of the transfers to AMLLC or the Company,
gains taxes levied or imposed upon Seller, AMLLC, the Original Venture or the
Property as a result of the transfers to AMLLC or the Company, sales taxes
levied or imposed upon Seller, AMLLC or the Property as a result of the
transfers to AMLLC or the Company and documentary stamps and other taxes, fees
or charges imposed in connection with the conveyance of the Seller's Interest or
any portion thereof;
(e) The Company shall pay all filing fees and charges and any
personal property sales taxes in connection with the indirect transfer of the
Personalty to the Company; and
(f) The Company shall pay the costs of the Lien Search.
3.2. Other Costs. Except for expenses and costs related to the
termination of any existing management agreement and the termination of any
employees, the Company shall pay any and all costs or expenses in connection
with the termination of any Contracts, other than the termination of management
contracts (which shall be at the cost and expense of Seller), to be terminated
in accordance with the terms of this Agreement. The Company shall pay the legal
fees of its counsel and Seller shall pay the legal fees of Xxxxxxx Xxxx &
Xxxxxxxxx incurred in connection with the drafting and negotiation of this
Agreement and the Closing of the Transactions.
ARTICLE IV.
CLOSING
4.1. Closing. The closing of the Transactions (the "CLOSING")
shall take place at the offices of Xxxx, Gerber & Xxxxxxxxx, Xxx Xxxxx XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, commencing at 10:00 a.m., local time, on the
date hereof (the "CLOSING DATE").
4.2. Seller Closing Documents. On or prior to the Closing Date,
Seller shall deliver, or cause to be delivered, to the Company the following
documents (collectively, the "SELLER CLOSING DOCUMENTS"), duly executed by
Seller and the other parties thereto (other than the Company) and in form and
substance reasonably acceptable to the Company and to Seller unless the form
thereof is attached hereto:
(a) Bargain and Sale Deed and Assignments conveying the entire
interest of the Original Venture in and to the Property to AMLLC.
(b) Assignment of membership interests with respect to AMLCC,
assigning Seller's interest to the Company.
(c) An affidavit of the Original Venture stating its U.S.
taxpayer identification number and that it is a "United States person", as
defined by Sections 1445(f)(3) and 7701(b) of the Code.
(d) Certificates issued by the Delaware Secretary of State,
dated not more than ten (10) days prior to the Closing Date, certifying the good
standing of AMLLC and
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the Original Venture. Copies of the Certificates of Formation of AMLLC and any
amendments thereto, as of the Closing Date certified by the Secretary of State
of the State of Delaware as of a date not more than ten (10) days prior to the
Closing Date.
(e) Originals or certified copies of the organizational
documents for AMLCC and the Original Venture, Operating Agreement including
operating agreements, articles of organization, by-laws, minute books and
records of meetings, including all amendments thereof.
(f) Original, or copies certified by Seller as true, complete
and correct, of each of the Leases and the REA, together with all Books and
Records including current real estate tax bills, water, sewer and utility bills
and all Tenant correspondence.
(g) Any instruments, documents or certificates required to be
executed by AMLLC, the Original Venture or the Seller with respect to any state,
county or local transfer taxes applicable to the conveyance of the Property and
Seller's Interest pursuant to this Agreement.
(h) Keys and combinations to locked compartments within the
Property.
(i) Such other documents, instruments or agreements which
Seller or the Original Venture is required to deliver to the Company pursuant to
the other provisions of this Agreement or which the Company reasonably may deem
necessary or desirable in order to consummate the Transactions in accordance
with the terms hereof.
(j) Any Tenant security deposits in Seller's (as opposed to
the Original Venture's or AMLLC's) possession or control.
4.3. Company Closing Documents. On or prior to the Closing Date,
the Company shall deliver to Seller the following documents (herein referred to
collectively as the "COMPANY CLOSING DOCUMENTS"), duly executed by an authorized
officer on behalf of the Company and the other parties thereto (other than
Seller) and in form and substance reasonably acceptable to Seller and to the
Company unless the form thereof is attached hereto:
(a) An agreement or agreements pursuant to which the Company accepts
assignment of Seller's Interest.
(b) A duly executed and acknowledged Secretary's Certificate,
certifying that the members of the Company have duly adopted resolutions
authorizing the consummation of the Transactions and certifying the authority of
the respective authorized signatories of the Company, executing and delivering
this Agreement and the Company Closing Documents in their capacities as officers
of the Company.
(c) A certificate issued by the Secretary of State of Delaware dated
not earlier than ten (10) days prior to the Closing Date certifying the
existence and good standing of the Company as of the date of such certificate.
(d) Copies of the Certificate of Formation of the Company and any
amendments thereto, as of the Closing Date certified by the Secretary of State
of the State of
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Delaware as of a date not more than twenty (20) days prior to the Closing Date,
together with a certificate of an officer of the Company to the effect that the
Certificate of Formation of the Company, as certified by the Secretary of State
of Delaware, has not been further amended, revised, restated, canceled or
rescinded up to and including the Closing Date.
(e) Any instruments, documents or certificates required to be executed
by the Company with respect to any state, county or local transfer taxes
applicable to the conveyance of Seller's Interest pursuant to this Agreement.
(f) Such other documents, instruments or agreements which the Company
may be required to deliver to Seller pursuant to the other provisions of this
Agreement or which Seller reasonably may deem necessary or desirable to
consummate the Transactions; provided, however, that any such other document,
instrument or agreement which Seller reasonably deems necessary or desirable
shall not impose upon the Company any obligation or liability other than an
obligation or liability expressly imposed upon the Company pursuant to the terms
of this Agreement or pursuant to the terms of the other the Company Closing
Documents specified in this Section 4.3.
4.4. Joint Deliveries. Seller and the Company shall jointly execute and
deliver the Preliminary Proration Date Balance Sheet.
ARTICLE V.
Net Equity Adjustment
5.1 Net Equity Adjustment.
(a) At or prior to Closing, Seller shall prepare and deliver
to the Company a balance sheet with respect to the Property and the Original
Venture (the "PRELIMINARY PRORATION DATE BALANCE SHEET") prepared as of the last
day of the month prior to the Closing Date, or, if the data as of such date are
unavailable, the last day of the second month prior to the Closing Date. No
later than one hundred twenty (120) days after the Closing Date, the Company
shall cause to be prepared and delivered to Seller an unaudited balance sheet
with respect to the Property and AMLCC as of the Proration Date (the "PRORATION
DATE BALANCE SHEET" and, together with the Preliminary Proration Date Balance
Sheet, the "CLOSING BALANCE SHEETS"), showing Closing Net Equity. The Closing
Balance Sheets shall be prepared on an accrual basis in accordance with GAAP
applied in a manner consistent with that utilized in the preparation of the
financial statements for General Growth Properties, Inc., without regard to any
special provisions relating to its REIT status, provided however, that the
following rules shall be employed:
(i) The following assets shall be excluded or eliminated:
deferred rent receivables; deferred financing, leasing and other costs;
tenant lease incentives; prepaid expenses to the extent the full amount
thereof could not reasonably be expected to inure to the benefit of
AMLLC and/or the Original Venture (including but not limited to prepaid
insurance premiums);
(ii) no amount shall be recorded under the classification
"Building & Improvements", "Fixtures & Equipment", "Tenant
Improvements" and "Land;"
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(iii) net carrying amounts for or in respect of the
following shall be eliminated, with such elimination to be done, in
each case net of accumulated amortization and depreciation, allowances
for bad debts and other contra accounts: building and improvements,
fixtures and equipment, land, capitalized taxes, tangible personal
property and goodwill;
(iv) the following assets shall be included (and shall be
deemed to be part of the assets of the Original Venture and transferred
to the Company): all cash in the Original Venture;
(v) the following liabilities shall be excluded or
eliminated:) deferred revenues and income tax accounts;
(vi) at Seller's election, a liability may be excluded to
the extent that it is a Seller's liability and any reserves or other
assets relating to such excluded liability shall be excluded or
distributed to Seller;
(vii) there shall be excluded from assets an amount equal
to proceeds from condemnation or casualty insurance or awards for the
Property or the termination of any Lease, in each case received after
the date hereof;
(viii) reserves for billed accounts receivable, including
Rent and all other tenant charges, shall be calculated so that (A)
accounts receivable from Tenants in bankruptcy shall utilize a reserve
of 100%, (B) accounts receivable that are 90 days (but less than 120
days) past due shall utilize a reserve of 25%, and (C) accounts
receivable that are more than 120 days past due shall utilize a reserve
of 50%, and in each case accounts receivable shall also include a
reserve of five percent (5%) for unbilled tenant charges, and an
accrual shall be recorded for insurance deductibles based upon
insurance company estimates; and
(ix) any distributions made by AMLCC or the Original
Venture during November shall be treated as though not made.
(b) If based on the Preliminary Proration Date Balance Sheet,
Closing Net Equity exceeds zero, the Contribution Amount will be increased by
the amount of such excess. If, based on the Preliminary Proration Date Balance
Sheet, Closing Net Equity is less than zero, the Company will receive a credit
against the Contribution Amount equal to the amount of such shortfall.
(c) If, based on the Proration Date Balance Sheet, Closing Net
Equity, adjusted for the amount of any adjustment made pursuant to Section
5.1(b), exceeds zero, the Company will, no later than the later of (i) sixty-one
(61) days following the delivery of the Proration Date Balance Sheet or (ii)
five (5) business days following the resolution of a dispute with respect to an
item on the Proration Date Balance Sheet as set forth in subsection 5.2 hereof
(the "Balance Sheet Settlement Date"), pay to Seller the amount of such excess
by wire transfer of immediately available funds to an account designated by
Seller. If Closing Net Equity, adjusted for the amount of any adjustment made
pursuant to Section 5.1(b), is less than zero, Seller will pay to the Company no
later than the Balance Sheet Settlement Date the
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amount of such shortfall by wire transfer of immediately available funds to an
account designated by the Company.
5.2 Resolution of Disputes on Proration Date Balance Sheet.
(a) If Seller disagrees with any item on the Proration Date
Balance Sheet, Seller shall notify the Company in writing of such disagreement
within sixty (60) days after Seller's receipt of the Proration Date Balance
Sheet. Such notice shall set forth the basis for such disagreement in reasonable
detail. During such sixty (60) day period, the Company shall afford Seller and
its duly designated representatives access to all of the Original Venture's
books and records, in each case solely for the purposes of resolving such
disagreement. The Company and Seller shall thereafter negotiate in good faith to
resolve any such disagreements, provided that Seller shall promptly pay to the
Company, or the Company shall promptly pay to Seller, as the case may be, the
amount determined pursuant to Section 5.1(c) that is not subject to dispute.
(b) If the Company and Seller are unable to resolve any such
disagreements within thirty (30) days after the expiration of the sixty (60) day
period referred to in Section 5.2(a), or, if the Company and Seller are unable
to resolve a dispute concerning the final adjustments to the Contribution
Amount, the Company and Seller shall cause Ernst & Young (the "Auditor") to
resolve all disagreements on the disputed items as soon as practicable, provided
that the Auditor shall be bound by the provisions of Section 5.1 and may not
assign a value to any item greater than the greatest value for such item claimed
by either party or less than the smallest value for such item claimed by either
party. Each of the Company and Seller shall permit the Auditor to have full
access to its books, records, key employees and independent accountants in order
to resolve any such disagreements. The resolution of such disagreements by the
Auditor shall be final and binding on the Company and Seller. The fees and
expenses of the Auditor shall be paid by the party whose position is most at
variance with the decision of the Auditor.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
6.1. Seller's Representations and Warranties. Seller represents and
warrants to the Company as follows:
(a) Seller is an instrumentality of the State of New York,
validly existing under the laws of the State of New York with full power and
authority to execute, deliver and perform this Agreement.
(b) The execution, delivery and performance of this Agreement
by Seller have been duly and validly authorized by all necessary action on the
part of Seller. This Agreement has been, and the Seller Closing Documents will
be, duly executed and delivered by Seller, AMLLC or the Original Venture, as
applicable. This Agreement constitutes, and when so executed and delivered the
Seller Closing Documents will constitute, the legal, valid and binding
obligations of Seller, AMLLC or the Original Venture, as applicable, enforceable
against Seller, AMLLC or the Original Venture, as applicable, in accordance with
their respective terms.
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(c) None of the execution, delivery or performance of this
Agreement by Seller or the Original Venture does or will, with or without the
giving of notice, lapse of time or both, violate, conflict with, constitute a
default, result in a loss of rights, acceleration of payments due or creation of
any Lien upon the Property or require the approval or waiver of or filing with
any Person (including any governmental body, agency or instrumentality) under
(i) the organizational documents of Seller or the Original Venture, any
agreement, instrument or other document to which Seller or the Original Venture
is a party or by which it is bound, (ii) any judgment, decree, order, statute,
injunction, rule, regulation or the like of a governmental unit applicable to
the Property, AMLLC, the Original Venture, or Seller (other than notification of
ownership change or transfer or reissuance of permits as may be required under
Environmental Laws), or (iii) any contract or agreement by which Seller, AMLLC
or the Original Venture may be bound.
(d) Seller has good and marketable title to Seller's Interest
free and clear of Liens and, upon execution and delivery of the Seller Closing
Documents, the Company will have good and marketable title to Seller's interest
free and clear of Liens other than Liens created by, under or through the
Company. All right, title and interest or the Original Venture in and to the
Property has been transferred to AMLLC. No other property (other than the Real
Property and property owned by any Anchor) comprises "Alderwood Mall".
(e) Schedule 6.1(e) is a true, correct and complete copy of
the rent roll of the Property (the "RENT ROLL") as of November 1, 1999, prepared
in the format prescribed by the MRI software reporting system currently in place
at the Property. All information therein is accurate as of its date. Except as
set forth to the contrary on Schedule 6.1(e), no Tenant has paid any rent in
advance except for the current month.
(f) Schedule 6.1(f) is a true, correct and complete schedule
of delinquencies in Rent, common area maintenance and other similar charges,
showing amounts payable as of November 1, 1999 by each Party, which schedule
sets forth separately and certifies the items of Rents with respect to which
each such Party is in arrears, the amount of each item and the period of such
arrearage.
(g) Schedule 6.1(g) contains a complete and correct list of
all existing Leases and modifications thereof and supplements thereto regardless
of whether the terms thereof have commenced, setting forth with respect to each
(i) the date thereof and of each modification thereof and supplement thereto and
(ii) the names of the Parties thereto (including the name of the current
assignee, if any, but only if and to the extent Seller has actual notice of any
such assignment). A true and complete copy of each Lease demising space in
excess of 10,000 square feet, together with each modification thereof and
supplement thereto, has heretofore been furnished to the Company for inspection
and has been delivered to the Company on the date hereof. Each Lease constitutes
the entire agreement between the Original Venture and each Party thereto, and
the Original Venture has not made any oral promises or agreements amending or
modifying the same. No Person is using or occupying (or is entitled to use or
occupy) the Real Property except under a Lease or the REA.
(i) There are no leases executed by the Original Venture
or other rights of occupancy or use granted by the Original Venture or,
to Seller's knowledge, its predecessors in title of any portion of the
Property other than the Leases. Each of the Leases is valid and
subsisting and in full force and effect, and no Rents or other payments
or deposits
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are held by Seller, AMLLC, the Original Venture or the Original
Venture's agent, except the security deposits (together with the amount
of accrued and unpaid interest thereon) described on the Rent Roll and
Rents prepaid for the current month. As of the Closing Date, no Rents
due under, or any other interest in, any of the Leases will be assigned
to any party other than the AMLLC, or are otherwise pledged or
encumbered in any way. All Security Deposits are being, and have been,
held in compliance with all Legal Requirements.
(ii) Except as set forth on Schedule 6.1(g), no Tenant has
made any written claim which has been received by Seller or the
Original Venture or, to Seller's knowledge, has any other claim,
whether or not in writing (A) that the Original Venture has defaulted
in performing any of its obligations under any of the Leases which has
not heretofore been cured, (B) that any condition exists which with the
passage of time or giving of notice, or both, would constitute any such
default, (C) that such Tenant is entitled to any reduction in, refund
of, or counterclaim or offset against, or is otherwise disputing, any
Rents or other charges paid, payable or to become payable by such
Tenant, or (D) that such Tenant is entitled to cancel its Lease or to
be relieved of its operating covenants thereunder.
(iii) With the exception of delinquencies in the payment
of Rents which are set forth on Schedule 6.1(f), no material default
exists under any of the Leases on the part of the Tenant thereto and
Seller has no knowledge of any condition, which, with the passage of
time, or giving of notice, would constitute a default under any Lease.
With the exception of any requirement to repair any physical defects in
the Property, the Original Venture and AMLLC are not in default under
the Leases. The Original Venture has not delivered any default notices
to any Tenant under any Lease which has not been cured.
(iv) There are no rent abatements, offset rights, "free
rent periods" or other tenant concessions or inducements, including
lease assumptions or buy-outs, applicable to any of the Leases or any
rights to extend or renew any of such Leases except as set forth in the
Leases. There are no expansion rights, options or rights to renew,
extend or terminate the Leases, except as set forth in the Leases.
Neither Seller nor the Original Venture have granted any rights,
options or rights of first refusal of any kind to any Tenant or
otherwise, which are currently in effect, to purchase or to otherwise
acquire the Property or any part thereof or interest therein. All of
the improvements to be constructed by the landlord under each of the
Leases, or as required under any collateral agreement, plans or
specifications related to the Leases, have been fully completed in
accordance with the terms thereof and have been paid for.
(v) Except with respect to the construction of the food
court located on the Real Property, no condition exists that would
permit any Party to any Lease or REA to cancel or terminate such Lease
or REA, be released from liability from such Lease or REA or reduce its
obligations under any Lease or REA.
(vi) Neither Seller nor the Original Venture or any
Affiliate of any of the foregoing, has made a loan or otherwise
extended any credit to any Tenant.
(h) The REA constitutes the only reciprocal easement
agreements or operating agreements encumbering the Property. A true and complete
copy of the REA has heretofore been furnished to the Company, together with each
written modification thereof and supplement thereto. The REA constitutes the
entire agreement between the Original Venture
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and each REA Party thereto, and neither Seller nor the Original Venture have
made any oral promises or agreements amending or modifying the same.
(i) The REA is valid and in full force and effect, and no
Rents or other payments or deposits are held by Seller, the Original
Venture, AMLCC or Seller's agent, except the Rents prepaid for the
current month. As of the Closing Date, no Rents due under, or any other
interest in, the REA will be assigned to any party other than the
Existing Lender, or are otherwise pledged or encumbered in any way.
(ii) Except with respect to the construction of the food
court located on the Real Property and except as set forth on Schedule
6.1(h), none of the REA Parties has made any written claim which has
been received by Seller, the Original Venture or, to Seller's
knowledge, has any other claim, whether or not in writing (A) that the
Original Venture has defaulted in performing any of its obligations
under any of the REAs which has not heretofore been cured, (B) that any
condition exists which with the passage of time or giving of notice, or
both, would constitute any such default, (C) that such REA Party is
entitled to any reduction in, refund of, or counterclaim or offset
against, or is otherwise disputing, any Rents or other charges paid,
payable or to become payable by such REA Party, (D) that such REA Party
is entitled to cancel its REA or to be relieved of its operating
covenants thereunder, or (E) that there is a violation of any of the
covenants, conditions or restrictions contained in such REA.
(iii) With the exception of delinquencies in the payment
of Rents which are set forth on Schedule 6.1(f), no material default
exists under the REA on the part of the REA Parties thereto and, except
with respect to the construction of the food court located on the Real
Property, Seller has no knowledge of any condition which, with the
passage of time or giving of notice, would constitute a default under
any REA. With the exception of any requirement to repair any physical
defects in the Property, the Original Venture and AMLLC are not in
default under the REA. The Original Venture has not delivered any
default notices to any party under the REA which has not been cured.
(iv) There are no rent abatements, offset rights, "free
rent periods" or other concessions or inducements, including lease
assumptions or buy-outs, applicable to the REA or any rights to extend
or renew the REA except as set forth in Schedule 6.1(h) or the REA.
There are no options or rights to renew, extend, expand or terminate
the REA, except as set forth in Schedule 6.1(h). Except as set forth in
Schedule 6.1(h), neither Seller nor the Original Venture have granted
any rights, options or rights of first refusal of any kind to any of
the REA Parties, which are currently in effect, to purchase or to
otherwise acquire the Property or any part thereof or interest therein.
All of the improvements to be constructed by the developer or owner
under the REA, or as required under any collateral agreement, plans or
specifications related to the REA, have been fully completed in
accordance with the terms thereof and paid for. No party to any REA has
given notice that it has ceased or that it intends to cease operating
its store or other property that it is required to operate under the
REA.
(i) Each of the Contracts is in full force and effect. To
Seller's knowledge, there have been no material defaults by any Party to a
Contract which have not heretofore been cured. There has been no material
default (without giving effect to any notice and cure rights) by the Original
Venture under any Contract or any claim received by Seller or the Original
Venture of any such default by any party thereto, which has not heretofore been
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cured except as set forth on Schedule 6.1(i)(a). Except as set forth on Schedule
6.1(i)(b), all of the Contracts are terminable upon notice given sixty (60) days
or less before any such termination, without penalty, fee or cost. A true and
complete copy of each Contract listed on Schedule 6.1(i)(a), together with any
modifications, amendments or supplements thereto, has been delivered or made
available to the Company.
(j) Schedule 6.1(j) contains a list of all permits,
authorizations, approvals and licenses currently maintained with respect to the
Property and all such permits, authorizations, approvals and licenses are in
full force and effect. Neither Seller nor the Original Venture have received any
written notice of violation from any federal, state or municipal entity with
respect to the Property or in connection with the operations conducted thereon
that has not been cured or otherwise resolved to the satisfaction of such
governmental entity. To Seller's knowledge, the permits, authorizations,
approvals and licenses listed on Schedule 6.1(j) are all of the licenses and
permits which are required for the present use of the Property.
(k) Except as disclosed in the Phase I Environmental
Assessment delivered to the Company, and except for non-friable asbestos and as
set forth on Schedule 6.1(k), neither Seller, the Original Venture nor to
Seller's knowledge, any other Person has caused or permitted any Hazardous
Material to be maintained, disposed of, stored, treated, recycled, brought upon,
transported over, released or generated on, under or at the Property or any part
thereof or any real property adjacent thereto, except for the presence,
maintenance, storage, use or transportation of substances commonly present or
stored at or used in the ordinary operation and maintenance of shopping centers
in ordinary quantities commonly present, stored or used at shopping centers and
in compliance with applicable laws, including Environmental Laws. Except as
disclosed in the Phase I Environmental Assessment delivered to the Company,
there has been no release or threatened release of any Hazardous Materials at
the Property or any part thereof that will give rise to any obligation or
liability to conduct or pay for any investigation, removal, remediation,
monitoring, closure, or post-closure care at, on or under the Property or any
part thereof, nor has any release or threatened release of Hazardous Material
at, on or under the Property or any part thereof or with respect to any offsite
location to which Hazardous Material have, or are alleged to have, migrated or
been transported from the Property or any part thereof. Except as disclosed in
the Phase I Environmental Assessment delivered to the Company, Seller and the
Original Venture are in compliance with, and have heretofore complied with, all
applicable Environmental Laws with respect to the Property and as of the date
hereof there are no violations of applicable Environmental Laws at the Property
which have not been remediated in accordance with all applicable Environmental
Laws. Neither Seller nor the Original Venture have received any written notice
from any governmental unit or other person that it or the Property is not in
compliance with any Environmental Law or that it has any liability with respect
thereto and there are no administrative, regulatory or judicial proceedings
pending or, to the knowledge of Seller, threatened with respect to the Property
pursuant to, or alleging any violation of, or liability under any Environmental
Law. Except as set forth on Schedule 6.1(k), neither Seller nor the Original
Venture have installed any underground or above ground storage tanks on, under
or about the Property and no such tanks are located on, under or about the
Property.
(l) Except as set forth on Schedule 6.1(l), the Original
Venture is under no obligation to make contributions or otherwise provide
assistance to any promotional association or promotional fund and has not
customarily in the past made or provided any such
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contributions or assistance. The promotional association established with
respect to the Property (the "Promotional Association") is an independent
association established by and on behalf of the Tenants, Seller and the Original
Venture having no ownership, management, fiduciary or monetary interest of any
kind therein. Seller and/or the Existing Venture has remitted to the Promotional
Association any amounts received by it from Tenants and other Parties that
constitute contributions to the Promotional Association. Seller and/or the
Original Venture, as the case may be, has made all required payments to any such
Promotional Association or fund, if any.
(m) Except as provided in Schedule 6.1(m), there is no
litigation, including any arbitration, investigation or other proceeding by or
before any court, arbitrator or governmental or regulatory official, body or
authority which is pending or, to Seller's knowledge, threatened against Seller
or the Original Venture relating to the Property, Seller's Interest or the
Transactions, there are no unsatisfied arbitration awards or judicial orders
against the Original Venture and, to Seller's knowledge, there is no basis for
any such arbitration, investigation or other proceeding. Copies of all pleadings
and other documents furnished or made available by Seller to the Company with
respect to the litigation described on Schedule 6.1(m) are true, accurate and
complete in all respects.
(n) No condemnation proceeding or other proceeding or action
in the nature of eminent domain is pending with respect to all or any part of
the Property, and, to Seller's knowledge, no condemnation proceeding or other
proceeding or action in the nature of eminent domain is pending with respect to
any property owned by a Party to the REA which is the subject of such REA and to
Seller's knowledge no Taking is threatened with respect to all or any part of
the Property, or any property owned by a Party to the REA which is the subject
of such REA.
(o) True, correct and complete copies of current real estate
tax bills with respect to the Property, other than tax bills sent to Tenants who
have the obligation to pay such taxes to the collecting authority, have been
delivered or made available to the Company. No portion of the Property comprises
part of a tax parcel which includes property other than property comprising all
or a portion of the Property. No application or proceeding is pending with
respect to a reduction or an increase of such taxes. There are no tax refund
proceedings relating to the Property which are currently pending and neither
Seller nor the Original Venture, nor any Affiliate thereof has applied for any
such reduction. Seller has no knowledge of any special tax or assessment to be
levied against the Property or any change in the tax assessment of the Property
other than the annual assessment. Neither Seller nor the Existing Venture has
received written notice of any, or has any knowledge of any special assessments
currently affecting the Property.
(p) Neither Seller nor the Original Venture have received (i)
any written notice from any governmental authority having jurisdiction over the
Property of, and to Seller's knowledge there does not exist, (A) any violation
of any law, ordinance, order or regulation (including the ADA) affecting the
Property, or any portion thereof, which has not heretofore been complied with or
(B) any other obligation to any such governmental authority for the performance
of any capital improvements or other work to be performed by Seller or the
Original Venture in or about the Property or donations of monies or land (other
than general real property taxes) which has not been completely performed and
paid for; or (ii) any written notice from any insurance company, insurance
rating organization or Board of Fire Underwriters
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requiring any alterations, improvements or changes at the Property, or any
portion thereof, which has not heretofore been complied with.
(q) No approval, consent, waiver, filing, registration or
qualification with any third party, including any governmental bodies, agencies
or instrumentalities is required to be made, obtained or given for the
execution, delivery and performance of this Agreement or any of the Seller
Closing Documents by Seller, the Original Venture, or AMLCC or the consummation
of the Transactions (other than notification of ownership change or transfer or
reissuance of permits as may be required under Environmental Laws).
(r) The Original Venture is corporation duly formed, validly
existing and in good standing under the laws of the State of Delaware with full
power and authority to own the Property and conduct the business now being
conducted by it.
(s) AMLLC is a limited liability company, duly formed and
validly existing and in good standing under the laws of the State of Delaware
with full power and authority to own the property and conduct the business now
being conducted by it.
(t) [Intentionally Deleted]
(u) [Intentionally Deleted]
(v) Seller has furnished the Company with the financial
statements of the Original Venture (consisting of balance sheets and income
statements) as of, and for the calendar years ended, December 31, 1997 and
December 31, 1998 (the "FINANCIAL STATEMENTS"). The Financial Statements are
consistent with the books and records and accounts of the Original Venture and
fairly present the financial condition and results of the Original Venture as of
the dates thereof and for the periods referred to therein, and the Financial
Statements have been prepared in accordance with generally accepted accounting
principles, consistently applied throughout the periods indicated. Since
December 31, 1998, the Original Venture has conducted its business in the
ordinary course consistent with past practice and there have been no material
adverse changes in the financial condition of the business, and Seller has no
knowledge of any circumstance or event which, insofar as can be reasonably
foreseen, is likely to result in any such material adverse change.
(w) [Intentionally Deleted]
(x) [Intentionally Deleted]
(y) Schedule 6.1(y) contains a true, complete and accurate
list including the amounts thereof of all policies of insurance with respect to
the Property, which policies are and will be kept in full force to and including
the Closing Date. All premiums for such insurance have been paid in full. To
Seller's knowledge, neither Seller nor the Original Venture have performed,
permitted or suffered any act or omission which would cause the insurance
coverage provided in said policies to be reduced, cancelled, denied or disputed
and neither Seller nor the Original Venture have received (and has no knowledge
of) any notice or request from any insurance company or Board of Fire
Underwriters (or organization exercising functions similar thereto) canceling or
threatening to cancel any of said policies or denying or disputing coverage
thereunder.
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(z) To Seller's knowledge, there are no material structural or
other material physical defects in the Improvements or any component or system
of the Improvements and all such Improvements are in good condition and repair.
(aa) Neither Seller nor, to Seller's knowledge, the
Original Venture has received notice that there is, and, to Seller's knowledge,
there does not now exist, any violation of any restriction, condition or
agreement contained in any easement, restrictive covenant or any similar
instrument or agreement affecting the Real Property or any portion thereof.
(bb) The Original Venture and AMLLC have no employees.
There are no collective bargaining or union agreements with respect to the
employees at Property or to which Seller, AMLCC or the Original Venture is
bound. Neither the Original Venture nor AMLLC maintain or sponsor any employee
benefit plan, including any plans subject to the Employer Retirement Income
Security Act of 1974, as amended. There are no pending claims or, to Seller's
knowledge, any threatened claim against AMLLC or the Original Venture by any
employee whose employment related to the Property.
(cc) No broker, finder, investment banker or other person
is entitled to any brokerage, finder's or other fee or commission in connection
with the Transactions based upon arrangements made by or on behalf of Seller.
(dd) [Intentionally Deleted]
(ee) All material documents and Books and Records have
been delivered or have been made available to the Company. All of the documents
and Books and Records that have been delivered or made available to the Company
by or on behalf of Seller, are true, correct and complete copies of what they
purport to be and have not been modified or amended, except as specifically
noted therein. All information set forth in the exhibits and schedules to this
Agreement is true, correct and complete in all material respects and not
misleading. Seller does not have any knowledge of any significant adverse fact
or condition relating to the Property, which has not been specifically disclosed
in writing by Seller to the Company.
(ff) There are no lease brokerage agreements, leasing
commission agreements or other agreements providing for payments of any amounts
for leasing activities or procuring tenants (including renewing leases at
expanding spaces) with respect to the Property other than as disclosed in
Schedule 6.1(ff).
(gg) Schedule 1.1-2 attached hereto contains a true,
correct and complete description of the Personalty (including the name
"Alderwood Mall"), and except as disclosed on said Schedule 1.1-2, the Original
Venture has good title to the Personalty free and clear from Liens and other
encumbrances other than the Permitted Exceptions. The Personalty is all of the
personal property that is necessary in order to operate and maintain the Real
Property as a first class regional shopping center. The Original Venture has
taken all steps necessary in order to protect its exclusive right to use the
name "Alderwood Mall" in connection with the Real Property.
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(hh) (i) Since May, 1997 gift certificates having an
aggregate value of $1,500,256.00 have been minted, and (ii) gift certificates
having an aggregate value of $135,895.00 are outstanding as of November 7, 1999.
(ii) Except as set forth in Schedule 6.1(ii) attached
hereto, neither Seller, nor any Affiliate of Seller (other than the Original
Venture), owns (i) any right or interest in any real property adjacent to or
neighboring the Real Property including any outparcel or (ii) any right or
interest in any easement, right of way, development right, water or mineral
right or any other right which in any way affects the Real Property.
(jj) Except for routine work in the ordinary course of
operating the Real Property that will be paid when due, no work has been
performed by Seller or is in progress at Seller's request at the Real Property,
and no materials or supplies have been delivered to the Real Property at
Seller's request, that has resulted in the imposition of, or might provide the
basis for the imposition of, mechanics', materialmen's or other liens against
the Real Property.
(kk) The sales reports heretofore furnished by Seller to
the Company for calendar years 1996, 1997 and 1998, and the rolling twelve (12)
months sales report from March 1999, disclose the sales by Tenants at the Retail
Property as reported to Seller by such Tenants.
(ll) All water, storm sewer/sanitary sewer, gas,
electricity, telephone and other utility lines, pipes and other equipment
necessary in order to operate the Real Property as a first class regional
shopping center (collectively, the "Utility Equipment") presently serve the Real
Property and to Seller's knowledge, are in good working order. Neither Seller
nor the Original Venture, has any outstanding unpaid obligation to pay the cost
of connection of any utility lines, pipes or other equipment serving the Real
Property.
(mm) The Real Property has not suffered any casualty or
other material damage that has not been fully repaired.
(nn) To Seller's knowledge, all HVAC, electric, gas,
fire-safety, plumbing, mechanical and other systems at the Real Property are in
good, working condition and no portion of same presently require replacement or
significant repair (i.e., repairs which are ordinarily capitalized under
generally accepted accounting principles).
(oo) Except as disclosed on Schedule 6.1(oo) attached
hereto, no capital work is currently in progress or contemplated.
(pp) Neither Seller nor the Original Venture, has received
written notice from any Governmental Authority, from any Party to any REA, any
Tenant or any party to any other agreement or document, or otherwise has
knowledge, that the number of parking spaces at the Real Property is required
under any Legal Requirement, any Lease, or the REA, to be increased above the
number of parking spaces existing on the date hereof.
(qq) The Original Venture has (i) filed all tax returns
required to be filed by it under applicable Legal Requirements and (ii) timely
paid all taxes shown to be due and payable on such tax returns.
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(rr) Seller has no knowledge of any defects, liens,
encumbrances, adverse claims or other matters to be insured against under the
Title Policy (collectively, the "Insured Matters") that could result in the
issuer of the Title Policy denying its liability to the Company on the grounds
that AMLLC, the Original Venture or the Company had knowledge of any such
Insured Matters solely by reason of notice thereof imputed to it as a matter of
law through either Seller, AMLLC the Original Venture or any Affiliate thereof.
(ss) Except as set forth on Schedule 6.1(ss), neither
Seller nor the Original Venture has received any written notice with respect to
the Real Property of any violation of law or municipal ordinances, orders or
requirements, that have been noted in or issued by any federal, state or
municipal department having jurisdiction, and which have not been fully remedied
and discharged of record.
(tt) To Seller's knowledge, Seller has provided the
Company with access to any and all certificates, licenses, permits, leases,
ground leases, operating agreements, books, records, documents and information
relating to the Real Property and the ownership and operation thereof which are
in the possession and control of Seller or the Original Venture.
(uu) Seller is the owner of 100% of the membership
interests in AMLLC. No other Person has any option or other right to acquire
Seller's Interest, any portion thereof or any other equity interest in AMLLC or
any security or instrument convertible into any such equity interest.
Notwithstanding anything to the contrary contained herein,
(a) Seller shall have no liability under this Agreement for the cost of repair,
remediation or correction of any physical defect in the Property as a result of
a breach of the representations and warranties contained in Sections 6.1(k),
(z), (mm) and (nn) (but nothing contained in this paragraph shall limit Seller's
liability for damages or fines or other amounts owing to Parties, Governmental
Authorities or others on account of any such physical defect to the extent that
such damages, fines or other amounts are not for the cost of repair, remediation
or correction thereof), (b) Seller shall have no liability for a breach of
representation or warranty contained herein or in the Closing Documents to the
extent that the Company has received a credit therefor under the provisions of
Article V, and (c) Seller shall have no liability under this Agreement due to
the allegation by X.X. Xxxxxx and any other Anchor asserting that the
construction of the food court located on the Property was in violation of REA,
and the effect of any such allegation upon Seller and any predecessor in
interest of Seller are expressly excluded from the representations and
warranties, express or implied, of the Seller hereunder.
6.2. Company Representations and Warranties. The Company represents
and warrants to Seller as follows:
(a) The Company is a limited liability company duly formed,
validly existing and in good standing under the laws of the State of Delaware
with full right, power and authority to execute, deliver and perform this
Agreement.
(b) The execution, delivery and performance by the Company of
this Agreement have been duly and validly authorized by all requisite action on
the part of the Company. This Agreement has been, and the Company Closing
Documents will be, duly
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executed and delivered by the Company. This Agreement constitutes, and when so
executed and delivered the Company Closing Documents will constitute, the legal,
valid and binding obligations of the Company, enforceable against it in
accordance with their terms.
(c) None of the execution, delivery or performance of this
Agreement or the Company Closing Documents by the Company does or will, with or
without the giving of notice, lapse of time or both, violate, conflict with,
constitute a default or result in a loss of rights under or require the approval
or waiver of or filing with any Person (including any governmental body, agency
or instrumentality) under (i) the organizational documents of the Company or any
material agreement, instrument or other document to which the Company is a party
or by which the Company is bound or (ii) any judgment, decree, order, statute,
injunction, rule, regulation or the like of a governmental unit applicable to
the Company, other than notification of ownership change or transfer or
reissuance of permits as may be required under Environmental Laws.
(d) No broker, finder, investment banker or other person is
entitled to any brokerage, finder's or other fee or commission in connection
with the Transactions based upon arrangements made by or on behalf of the
Company.
6.3. No Other Representations. Neither Seller nor any officer,
director, shareholder, member, agent, partner, employee, or representative of
Seller (or any officer, director, partner or employee of any agent of Seller)
has made any representation whatsoever regarding the Property or any part
thereof, or anything relating to the subject matter of this Agreement, except as
expressly set forth in this Agreement, and the Company, in executing, delivering
and performing this Agreement, has not and does not rely upon any statement,
information, or representation to whomsoever made or given, whether to the
Company or others, and whether directly or indirectly, verbally or in writing,
made by any person, firm or corporation, except as expressly set forth in this
Agreement or in the Seller Closing Documents.
6.4. Knowledge Defined. For the purposes of this Agreement,
"knowledge" (including "actual knowledge" and other similar terms) with respect
to Seller and the Original Venture shall mean matters as to which any of the
following individuals have actual knowledge without any duty or responsibility
to make any inquiry, review or investigation: (i) Xxxxxxx Xxxxxxx, (ii) Xxxxxx
X. Xxxxxxx, Xx., (iii) Xxxxx Xxxxxxxx, (iv) Xxxxx Xxxx, (v) Xxxxx XxxXxx, (vi)
Xxxxxxxx Xxxxx and (vii) Xxxxxx Xxxxxx. Actual knowledge shall not be deemed to
exist merely by assertion by the Company of a claim that any of the foregoing
persons should have known of such facts or circumstances, if such person did not
have actual knowledge thereof. Seller hereby represents and warrants that the
foregoing individuals are the individuals with the primary responsibility for
overseeing the sale, management, and operation of the Property at the level of
vice president and above.
ARTICLE VII.
ADDITIONAL COVENANTS
7.1. Record Retention. Until three (3) years after the Closing, the
Company shall provide Seller upon prior written notice and during normal
business hours with reasonable access to the Books and Records and, at Seller's
cost, copies of all or any portion thereof. The Company either shall retain such
Books and Records until the third anniversary of the date
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hereof or notify Seller of its desire to dispose of such Books and Records
pertaining to any period prior to the Closing which have been delivered to the
Company and turn them over to Seller if Seller so requests. Seller agrees to
keep, and to instruct its agents, employees and representatives to keep,
confidential such Books and Records (and any information contained therein) and
any information discovered in any such examinations and inspections, except in
connection with any legal proceedings or to the extent required by law. Upon the
Company's request, for a period of three (3) years after the Closing, Seller
shall make all of Seller's records with respect to the Property which are in the
possession or control of Seller available to the Company for inspection, copying
and audit by the Company's designated accountants. The provisions of this
Section 7.1 shall survive Closing.
7.2. Publicity. In no event shall either Seller or the Company
issue any press release or otherwise disclose any non-public information
regarding this Agreement or the Transactions unless the other party has
consented thereto in writing as to the form and substance of any such statement
or disclosure (and Seller and the Company agree not unreasonably to withhold,
condition or delay such consent); provided, however, that nothing herein shall
be deemed to limit or impair in any way any party's ability to disclose the
details of or information concerning this Agreement or the Transactions to the
extent necessary to such party's attorneys, accountants or other advisors or to
the extent such party reasonably deems necessary or desirable pursuant to any
court or governmental order or applicable securities laws or regulations or
financial reporting requirements, or to obtain the Existing Indebtedness Consent
Documents. Further, to the extent necessary, either party may disclose any
information regarding this Agreement or the Transactions to its direct or
indirect constituent partners, members or shareholders, as the case may be (and
to counsel for such constituent partners, members and shareholders) and as
otherwise necessary to comply with the terms of this Agreement. Any disclosure
by a party's advisors or direct or indirect constituent partners, members or
shareholders shall be deemed a breach hereof by such party. If for any reason
this Transaction is not consummated, the Company will promptly return to Seller
all originals and copies of documents, reports and financial and other
information relating to the Property and to Seller which Seller has furnished to
the Company. The obligations of Seller and the Company under this Section 7.2
shall survive the termination hereof, however caused.
7.3. Assistance Following Closing. From and after the Closing,
Seller at the Company's reasonable expense shall provide reasonable assistance
to the Company in connection with the preparation of financial statements and
bills and the adjustment of losses and claims and the enforcement or settlement
of any such claims. Without limiting the foregoing, Seller shall, upon the
reasonable request of the Company from time to time, provide signed
representation letters with respect to revenues and expenses of Seller if
required under GAAS to enable the Company's accountants to render an opinion on
the Company's financial statements.
7.4. Further Assurances. Each of Seller and the Company agree, at
any time and from time to time after the Closing, to execute, acknowledge where
appropriate and deliver such further instruments and other documents (and to
bear its own costs and expenses incidental thereto) and to take such other
actions as the other of them may reasonably request in order to carry out the
intent and purpose of this Agreement; provided, however, that neither Seller nor
the Company shall be obligated, pursuant to this SECTION 7.4 to incur any
expense of a material nature and/or to incur any material obligations in
addition to those set forth in this Agreement and/or its respective Closing
Documents.
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7.5. No Intercompany Accounts. Prior to the Closing, Seller shall
pay, distribute, release or otherwise eliminate any and all intercompany debt or
accounts between the Original Venture, AMLLC and Seller or any Affiliate of
Seller.
ARTICLE VIII.
INDEMNIFICATION
8.1. Indemnification by Seller. From and after the Closing, Seller
shall indemnify, defend and hold harmless the Company and its members, officers,
directors, managers, employees, representatives and agents, and any direct or
indirect partner, shareholder, officer, director or member of any member of the
Company, and their respective successors and assigns (collectively, the
"INDEMNIFIED COMPANY PERSONS") from and against any Losses asserted against,
incurred or suffered by any Indemnified Company Person that results from,
relates to or arises out of (a) the breach or inaccuracy of any representation
or warranty made by Seller in this Agreement or the Seller Closing Documents,
(b) the breach or non-fulfillment by Seller of any of the covenants or
agreements of Seller under this Agreement or the Seller Closing Documents, or
(c) Seller's Liabilities.
8.2. Indemnification by the Company. From and after the Closing,
the Company shall indemnify, defend and hold harmless Seller and its direct or
indirect shareholders, directors, officers, members, partners employees and
agents, and their respective successors and assigns (collectively the
"INDEMNIFIED SELLER PERSONS") from and against any Losses asserted against,
incurred or suffered by any Indemnified Seller Person that results from, relates
to or arises out of (a) the breach or inaccuracy of any representation or
warranty made by the Company in this Agreement or the Company Closing Documents,
(b) the breach or non-fulfillment by the Company of any of the covenants or
agreements of the Company under this Agreement or the Company Closing Documents,
or (c) the Assumed Liabilities.
8.3. Indemnification Procedure.
(a) Subject to the provisions of Section 8.3(d), the
indemnified party (the "INDEMNIFIED PARTY") shall give the indemnifying party
(the "INDEMNIFYING PARTY") prompt notice of any Losses (or potential Losses)
which may be covered under this Article VIII and such notice shall state the
basis for the claim, action or proceeding and the amount thereof (to the extent
such amount is determinable at the time when such notice is given). In the event
the notice relates to a claim, assertion, action, suit or proceeding by a
third-party ("THIRD PARTY CLAIM") for which indemnification is provided
hereunder, the Indemnified Party shall permit the Indemnifying Party (or its
insurance company) to assume the defense of such claim, assertion, action, suit
or proceeding and the Indemnifying Party (or its insurance company) may (i)
prior to the commencement of any proceedings in connection with such Losses,
undertake the negotiation of any resolution of the dispute relating to such
Losses, including in accordance with the terms hereof any settlement or release,
or (ii) undertake the defense of any proceeding (including any alternative
dispute resolution proceeding) regarding such Losses by selecting legal counsel
who shall be reasonably acceptable to the Indemnified Party. Failure of the
Indemnifying Party to notify an Indemnified Party of its election to undertake
the Indemnified Party's defense of a Third Party
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Claim within a reasonable time, but in no event more than thirty (30) days after
notice thereof shall have been given to the Indemnifying Party, shall be deemed
a waiver by the Indemnifying Party of its right to undertake the defense of such
Third Party Claim. Xxxxxxx Xxxx & Gallagher, Neal, Gerber & Xxxxxxxxx and
counsel for the Indemnifying Party's insurance company shall be deemed
reasonably acceptable to the Indemnified Party.
(b) Provided the Indemnifying Party shall have undertaken the
Indemnified Party's defense of a Third Party Claim with legal counsel reasonably
acceptable to the Indemnified Party, and shall have so notified the Indemnified
Party, the Indemnified Party shall be entitled to participate at its own expense
in the aforesaid negotiation or defense of any claim relating to such Losses
(subject to reimbursement to the limited extent provided in Section 8.3(e)), but
such negotiations or defense shall be controlled by counsel to the Indemnifying
Party.
(c) EXCEPT AS PROVIDED IN SECTION 8.3(e), the Indemnifying
Party shall not be liable for payments relating to the resolution of any dispute
or any settlement of any litigation or proceeding effected without the written
consent of the Indemnifying Party, which consent shall not be unreasonably
withheld, conditioned or delayed. The Indemnifying Party shall not, in the
defense of any such Third Party Claim, consent to the entry of any judgment or
award, or enter into any settlement, except in either event with the prior
consent of each Indemnified Party, which consent shall not be unreasonably
withheld, conditioned or delayed. To the extent any Indemnified Party declines
to consent to a bona fide offer of settlement or compromise, the Indemnifying
Party shall continue to defend, but the amount of such offer shall be the limit
of the Indemnifying Party's liability with respect to such claim, action or
proceeding with respect to the Indemnified Party that declined such offer.
Notwithstanding the foregoing, the Indemnifying Party shall not, without the
Indemnified Party's written consent, (which consent may be withheld in the sole
and absolute discretion of the Indemnified Party) resolve any dispute or settle
or compromise any claim regarding Losses from a Third Party Claim or consent to
entry of any judgment which would impose an injunction or other equitable relief
upon the Indemnified Party or which does not include as an unconditional term
thereof the release by the claimant or the plaintiff of the Indemnified Party
from all liability in respect of any such Losses.
(d) The failure to give notice of a claim under this Article
VIII shall not release the Indemnifying Party of its obligations under this
Article VIII, except to the extent of the actual harm suffered thereby.
(e) In the event the Indemnifying Party fails after notice
from the Indemnified Party to timely undertake negotiation of any dispute or
defend, contest or otherwise protect against any claim or suit with respect to a
Third Party Claim, and to so notify the Indemnified Party, the Indemnified Party
may, but will not be obligated to, defend, contest or otherwise protect against
the same, and make any compromise or settlement thereof and recover the entire
costs thereof from the Indemnifying Party, including reasonable attorneys' and
experts' fees, disbursements and all amounts paid as a result of such claim or
suit or the compromise or settlement thereof. The Indemnified Party shall
cooperate and provide such assistance as the Indemnifying Party may reasonably
request in connection with the negotiation of any dispute and the defense of the
matter subject to indemnification and the Indemnifying Party shall reimburse the
Indemnified Party's reasonable costs incurred thereafter in connection with such
cooperation and assistance.
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(f) Notwithstanding anything to the contrary contained herein,
neither Seller nor the Company shall be entitled to indemnification hereunder
for any Losses to the extent it has received a credit therefor pursuant to
Article V.
ARTICLE IX.
MISCELLANEOUS
9.1. Survival. Except for the representations and warranties of
Seller set forth in Section 6.1(k), which representations and warranties and the
indemnification provisions relating thereto shall survive Closing indefinitely,
all other warranties, representations, covenants and agreements of Seller and of
the Company set forth in this Agreement shall survive until the Company ceases
to exist under the terms of the Operating Agreement.
9.2. Notices. Notices must be in writing and sent to the party to
whom or to which such notice is being sent, by (a) certified or registered mail,
postage prepaid and return receipt requested, (b) commercial overnight courier
service, or (c) delivered by hand with receipt acknowledged in writing, as
follows:
To the Company:
GGP/Homart II L.L.C.
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
with a copy thereof to:
The Comptroller of the State of New York
as Trustee of the Common Retirement Fund
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Assistant Deputy Comptroller
Investments and Cash Management
with a copy thereof to:
The Comptroller of the State of New York
as Trustee of the Common Retirement Fund
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Assistant Counsel
and
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Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxx
and
Clarion Partners
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
and
Xxxx, Gerber & Xxxxxxxxx
Two North LaSalle Street, Suite 2200
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx
To Seller:
with a copy thereof to:
The Comptroller of the State of New York
as Trustee of the Common Retirement Fund
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Assistant Deputy Comptroller
Investments and Cash Management
with a copy to:
The Comptroller of the State of New York
as Trustee of the Common Retirement Fund
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Assistant Counsel
and
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxx
and
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Clarion Partners
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
All notices (i) shall be deemed given when received if delivered by hand or
overnight courier service or, if mailed as described above with appropriate
postage, after 5 business days and (ii) may be given either by a party or by
such party's attorneys. The cost of delivery shall be borne by the party
delivering the notice.
9.3. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute a single document when at least one counterpart has been executed and
delivered by each party hereto.
9.4. Amendments. Except as otherwise provided herein, this
Agreement may not be changed, modified, supplemented or terminated, except by an
instrument executed by the party hereto which is or will be affected by the
terms of such change, modification, supplement or termination.
9.5. Waiver. Each party shall have the right exercisable in its
sole and absolute discretion, but under no circumstances shall be obligated, to
waive or defer compliance by any other party with its obligations hereunder or
to waive satisfaction of any conditions contained herein for its benefit. No
waiver by any party of a breach of any covenant or a failure to satisfy any
condition shall be deemed a waiver of any other or subsequent breach or failure
to satisfy any other condition. All waivers of any term, breach or condition
hereof must be in writing.
9.6. Successors and Assigns. Subject to the provisions of Section
9.10, the terms, covenants, agreements, conditions, representations and
warranties contained in this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns.
9.7. Third Party Beneficiaries. The provisions of this Agreement
are made for the benefit of the parties hereto, and their respective successors
in interest and assigns and are not intended for, and may not be enforced by,
any other person or entity.
9.8. Partial Invalidity. If any term or provision of this Agreement
or the application thereof to any person or circumstance shall, to any extent,
be invalid or unenforceable, the remainder of this Agreement, or the application
of such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby and
each term and provision of this Agreement shall be valid and enforced to the
fullest extent permitted by law.
9.9. Governing Law. This Agreement has been made pursuant to and
shall be governed by the laws of the State of Delaware (without regard to
conflicts of law rules).
9.10. Assignment. This Agreement may not be assigned or delegated by
any party without the written consent of the other except that the Company may
assign this Agreement to
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an Affiliate of the Company, it being acknowledged and agreed by the Company
that no such assignment shall relieve the Company of its obligations under this
Agreement.
9.11. Headings; Exhibits. The headings or captions of the various
Articles and Sections of this Agreement have been inserted solely for purposes
of convenience, are not part of this Agreement and shall not be deemed in any
manner to modify, explain, expand or restrict any of the provisions of this
Agreement.
9.12. Gender and Number. Words of any gender shall include the other
gender and the neuter. Whenever the singular is used, the same shall include the
plural wherever appropriate, and whenever the plural is used, the same also
shall include the singular where appropriate.
9.13. Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes any prior written or oral understandings and/or agreement among them
with respect thereto.
9.14. Costs of Enforcement. In the event that any action is brought
by any party or parties to this Agreement against any other party or parties to
enforce rights under this Agreement, the prevailing party's or parties' costs in
such action, including reasonable attorneys' fees, shall be paid by the other
party or parties. Any amounts owing hereunder which are not paid when due shall
bear interest at the per annum rate equal to the prime rate of Bank of America,
N.A. (or any successor), as the same may change from time to time, plus four
percent.
9.15. Time of the Essence. Time is of the essence with regard to
each provision of this Agreement. If the final date of any period provided for
herein for the performance of an obligation or for the taking of any action
falls on a Saturday, Sunday or banking holiday, then the time of that period
shall be deemed extended to the next day which is not a Sunday, Saturday or
banking holiday. Each and every day described herein shall be deemed to end at
5:00 p.m. Central Time.
9.16. Indemnification Against Broker Claims. Seller shall indemnify,
defend and hold harmless the Company from and against all loss, liability,
damages, costs and expenses (including reasonable counsel fees) resulting from
any claim that may be made by any broker or other person claiming to have dealt
with Seller in connection with the Transactions, for a commission, fee or other
compensation by reason of the Transactions including any loss, liability, costs
and expenses (including reasonable counsel fees) incurred in enforcing this
indemnity. The Company shall indemnify, defend and hold harmless Seller from all
loss, liability, costs and expenses (including reasonable counsel fees)
resulting from any claim that may be made by any broker or other person claiming
a commission, fee or other compensation by reason of having dealt with the
Company in connection with the Transactions, including any loss, liability,
costs and expenses (including reasonable counsel fees) incurred in enforcing
this indemnity. The provisions of this Section 9.16 shall survive the Closing or
termination of this Agreement.
9.16.1. Arbitration. Except as otherwise provided herein, in the event
of any dispute in connection with the terms and provisions of this Agreement,
the parties agree to submit such dispute to arbitration in accordance with the
provisions of Section 14.13 of the
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Operating Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto on the day and year first above written.
SELLER: COMPANY:
THE COMPTROLLER OF THE STATE OF, GGP/HOMART II L.L.C.,
NEW YORK AS TRUSTEE OF THE a Delaware limited
COMMON RETIREMENT FUND liability company
By: /s/ Xxxx X. Xxxx By: /s/ Xxxx Xxxxx
---------------------------- ---------------------------
Name: Xxxx X. Xxxx Name: Xxxx Xxxxx
Title: Deputy Comptroller of Title: Senior Vice President
Investments & Cash
Management
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LIST OF EXHIBITS AND SCHEDULES
Exhibits/Schedule Description
Exhibit A Legal Description of the Land
Exhibit B Permitted Exceptions
Schedule 1.1-1 Anchors
Schedule 1.1-2 Personalty
Schedule 6.1(e) Rent Roll
Schedule 6.1(f) Schedule of Arrearages
Schedule 6.1(g) Leases
Schedule 6.1(h) Claims under REA
Schedule 6.1(i) (a) List of all Contracts
Schedule 6.1(i) (b) List of all Contracts not terminable on 60 days
or less notice
Schedule 6.1(j) Permits and Licenses
Schedule 6.1(k) Environmental Disclosure
Schedule 6.1(l) Promotional Association Matters
Schedule 6.1(m) Pending or Threatened litigation
Schedule 6.1(x) List of Existing Indebtedness Documents
Schedule 6.1(y) Insurance Policies
Schedule 6.1(ff) Lease Brokerage Agreements
Schedule 6.1(ii) Seller's Rights in Neighboring Properties
Schedule 6.1(oo) Capital Expenditures in Progress or Contemplated
Schedule 6.1(ss) Notices of Uncured Violations
