1
Exhibit 99.5
PURCHASE AND SALE AGREEMENT
by and among
SOUTHWEST SHOPPING CENTERS, CO. II, L.L.C.,
a Delaware limited liability company,
as Seller,
and
WXI/Z SOUTHWEST MALLS REAL ESTATE LIMITED PARTNERSHIP,
a Delaware limited partnership,
as Purchaser,
and,
only for purposes of Section 8.8, Section 9.8 and Section 14.2 herein,
FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS,
an Ohio unincorporated association in the form of a business trust,
and,
only for purposes of Section 12.1 herein,
FIRST UNION MANAGEMENT, INC.
2
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (this "Agreement") is made and entered
into to be effective and binding as of the 14th day of July, 1999 (the
"Effective Date"), by and among SOUTHWEST SHOPPING CENTERS CO. II, L.L.C., a
Delaware limited liability company ("Seller"), and WXI/Z SOUTHWEST MALLS REAL
ESTATE LIMITED PARTNERSHIP, a Delaware limited partnership ("Purchaser"), and,
only for purposes of Section 8.8, Section 9.8 and Section 14.2 herein, FIRST
UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS, an Ohio unincorporated
association in the form of a business trust ("FUR"), and, only for purposes of
Section 12.1 herein, FIRST UNION MANAGEMENT, INC. ("FUM")
W I T N E S S E T H:
In consideration of and in reliance upon the covenants herein
contained, and for ten dollars and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE 1
DEFINITIONS
As used herein, the following words and phrases shall have the meanings
set forth below:
1.1 "Additional Deposit" has the meaning ascribed such term in Section
2.2.
1.2 "Adjourned Date" has the meaning ascribed such term in Section 5.3.
1.3 "Adjusted Purchase Price" has the meaning ascribed such term in
Section 6.3.
1.4 "Alexandria Ground Leases" means those leases identified on
Schedule 1.4 annexed hereto.
1.5 "Alexandria Ground Lease Assignments" shall mean separate
assignments by Seller to Purchaser of Seller's interest under each of the
Alexandria
3
Ground Leases and the assumption by Purchaser of the Alexandria Ground Leases,
in the form annexed hereto as EXHIBIT A.
1.6 "Anchor(s)" has the meaning ascribed such term in Section 5.4(a).
1.7 "Anchor Agreements" means the agreements listed on Schedule 1.7,
and such other similar reciprocal easement agreements and leases covering over
25,000 square feet of space at any Real Property which may be entered into by
Seller after the date hereof and prior to Closing in accordance with the terms
of this Agreement.
1.8 "Anchor Estoppel Certificates" has the meaning ascribed such term
in Section 5.4(a).
1.9 "Approved Lease" has the meaning ascribed such term in Section
8.1(d).
1.10 "Assignment of Anchor Agreements" means an assignment in the form
of EXHIBIT B attached hereto.
1.11 "Assignment of Contracts" means an assignment in the form of
EXHIBIT C attached hereto.
1.12 "Assignment of Leases and Specialty License Agreements" means an
assignment in the form of EXHIBIT D attached hereto.
1.13 "Xxxx of Sale and Blanket Conveyance" means a blanket conveyance,
xxxx of sale and assignment in the form of EXHIBIT E attached hereto.
1.14 "Board Resolution" has the meaning ascribed such term in Section
2.3.
1.15 "Broker" means Granite Partners.
1.16 "Business Day" means any day other than a Saturday, a Sunday or a
day on which banks in New York City are authorized or obligated by law or
executive order to close.
1.17 "Closing" means the closing of the Escrow, disbursement of the
Purchase Price and consummation of the transaction contemplated herein, which
shall occur in accordance with Article 6.
-2-
4
1.18 "Closing Date" means the date which is ten (10) Business Days
after the Seller Ratification is obtained, subject to adjournment as provided
herein, but in any event not later than the Closing Deadline.
1.19 "Closing Deadline" means December 20, 1999 with time being of the
essence, unless the Purchaser and Seller mutually agree to extend the deadline
for Closing; provided that, if the Shareholder Approval Deadline is extended
pursuant to Section 14.2(e), the Closing Deadline shall likewise be extended by
one day for each day that the Shareholder Approval Deadline is so extended.
1.20 "Confidential Information" has the meaning ascribed such term in
Section 8.3.
1.21 "Contracts" means all of the following to the extent they pertain
to the Property: (a) management, leasing, service, supplier, maintenance,
operating and repair contracts and similar agreements to which Seller is a party
(excluding the Leases, the Specialty License Agreements, the Anchor Agreements
and recorded documents evidencing the Permitted Exceptions), (b) equipment
leases to which Seller is a party, including rights, if any, to renew or extend
the term or purchase the leased equipment, (c) construction contracts with third
parties hired to perform tenant work and Mall improvements, if any, to which
Seller is a party and (d) all rights and options of Seller under the foregoing
items (a) through (c).
1.22 "Cutoff Date" has the meaning ascribed such term in Section 7.1.
1.23 "Deed" has the meaning ascribed such term in Section 6.3.
1.24 "Defect" or "Defects" means (a) any exception, condition,
limitation, qualification, exclusion or other title matter, other than a
Permitted Exception, noted in or shown by the Title Commitments or the Surveys
or (b) a lien, security interest or other encumbrance, other than a Permitted
Exception or any Lease, Specialty License Agreement or Anchor Agreement.
Notwithstanding anything to the contrary herein, any purchase option, right of
first refusal, right of first offer or similar right to purchase or any right to
participate in the gross or net profits or revenues or proceeds from any
Property (other than any right of GMAC under the GMAC Loan Documents and other
than as set forth in Seller's Files) shall be deemed to be a Defect and shall
not be a Permitted Exception to the extent that any such right would be binding
on Purchaser or its successors and assigns.
1.25 "Delinquent" has the meaning ascribed such term in Section 7.1.
1.26 "Deposit" has the meaning ascribed such term in Section 2.2.
-3-
5
1.27 "Due Diligence Termination Deadline" has the meaning ascribed such
term in Section 4.1; provided that the Due Diligence Termination Deadline may be
extended from time to time by Seller to a date which is five (5) Business Days
after the date on which Seller or the Title Insurer provides Purchaser with
copies of all (i) underlying documents referred to in Seller's Title Insurance
Policies and (ii) surveys of the Real Property. If Purchaser waives, in writing,
receipt of any such underlying documents or surveys, the matters with respect to
which receipt of such documents or surveys has been waived shall constitute
Permitted Exceptions. Purchaser agrees to advise Seller prior to the initial Due
Diligence Termination Deadline (but not any extensions thereof) of any such
underlying documents or surveys which have not been received by Purchaser.
1.28 "Due Diligence Termination Notice" has the meaning ascribed such
term in Section 4.1.
1.29 "Effective Date" has the meaning ascribed such term in the
Preamble.
1.30 "Environmental Laws" has the meaning ascribed such term in Section
9.3.
1.31 "Escrow" means the escrow created pursuant to the Escrow Agreement
with respect to the Deposit and the closing documents and other closing
deliveries pursuant to Article 6.
1.32 "Escrow Agreement" means the Escrow Agreement among Purchaser,
Seller and Escrowee as shall be agreed upon by the parties hereto and the
Escrowee.
1.33 "Escrowee" means the First American Title Insurance Company.
1.34 "Escrowee Wiring Instructions" has the meaning ascribed such term
in Section 2.2.
1.35 "Evaluation Material" means any information and materials relating
to the Property or the operation, leasing, management or maintenance thereof
reasonably requested or received by Purchaser for examination with respect to
the conduct of its due diligence pursuant to Article 4, including, without
limitation, all (i) Leases, Contracts, Specialty License Agreements and Anchor
Agreements and (ii) books, records, documents, files and computer files and
databases.
1.36 "Exchange" has the meaning ascribed such term in Section 14.17.
-4-
6
1.37 "Excluded Anchor Agreements" has the meaning ascribed such term in
Section 5.4(a).
1.38 "Excusable Delay" means an SEC Delay, a preliminary or permanent
injunction, a temporary restraining order, inclement weather or matters of a
similar type which are beyond the control of Seller, in each case, which
prohibits or prevents the holding of a meeting of the shareholders of FUR.
1.39 "FUM" has the meaning ascribed such term in the Preamble.
1.40 "FUR" has the meaning ascribed such term in the Preamble.
1.41 "GMAC" has the meaning ascribed such term in Section 3.1.
1.42 "GMAC Asbestos Maintenance Agreement" has the meaning ascribed
such term on Schedule 3.2(b).
1.43 "GMAC Assumption Fees" has the meaning ascribed to such term in
Section 3.3.
1.44 "GMAC Charges" has the meaning ascribed such term in Section 3.3.
1.45 "GMAC Commitment" has the meaning ascribed such term on Schedule
3.2(b).
1.46 "GMAC Consent" means (a) the consent of GMAC to the transfer of
the Real Property to Purchaser and the substitution of Purchaser for Seller as
the borrower under the GMAC Loan Documents and (b) the agreement of GMAC to
provide Seller with the GMAC Release at Closing.
1.47 "GMAC Cooperation Agreement" has the meaning ascribed such term on
Schedule 3.2(b).
1.48 "GMAC Environmental Agreement" has the meaning ascribed such term
on Schedule 3.2(b).
1.49 "GMAC Estoppel Certificate" has the meaning ascribed such term in
Section 5.4(d).
1.50 "GMAC FUR Indemnity" has the meaning ascribed such term on
Schedule 3.2(b).
-5-
7
1.51 "GMAC Granite Letter" has the meaning ascribed such term in
Section 3.3.
1.52 "GMAC Loan Agreement" shall mean the Loan Agreement dated as of
September 30, 1996 between Seller and GMAC as amended by an agreement dated
December 23, 1996.
1.53 "GMAC Loan Documents" shall mean the GMAC Loan Agreement, the GMAC
Mortgage, the note(s) secured thereby and all other documents, agreements and
instruments relating to the loan secured thereby, which documents are listed on
Schedule 3.2(b) annexed hereto.
1.54 "GMAC Lockbox Agreement" has the meaning ascribed such term on
Schedule 3.2(b).
1.55 "GMAC Management Fee Agreement" has the meaning ascribed such term
on Schedule 3.2(b).
1.56 "GMAC Mortgage" has the meaning ascribed such term in Section 3.1.
1.57 "GMAC Park Plaza Prepayment Penalty" has the meaning ascribed such
term in Section 3.4.
1.58 "GMAC Park Plaza Release Price" has the meaning ascribed such term
in Section 3.4.
1.59 "GMAC Prepayment Penalty" has the meaning ascribed such term in
Section 3.2.
1.60 "GMAC Release" has the meaning ascribed such term in Section 3.2.
1.61 "GMAC Repair Agreement" has the meaning ascribed such term on
Schedule 3.2(b).
1.62 "GMAC Reserve Agreement" has the meaning ascribed such term on
Schedule 3.2(b).
1.63 "GMAC Reserves Reimbursement" has the meaning ascribed such term
in Section 7.1.
1.64 "GMAC Termination Deadline" has the meaning ascribed such term in
Section 3.2(a).
-6-
8
1.65 "Hazardous Materials" has the meaning ascribed such term in
Section 9.3.
1.66 "Initial Deposit" has the meaning ascribed such term in Section
2.2.
1.67 "Intangibles" means (a) all existing warranties and guarantees
(express or implied) issued to or held by Seller or Sellers' predecessors in
title in connection with the Real Property or the Personalty, (b) the right to
the name of each Mall and (c) all trade names, trademarks, logos, copyrights and
other general intangibles relating to the Real Property and the Personalty.
1.68 "Interest Income" has the meaning ascribed such term in Section
5.1.
1.69 "Lease Year" has the meaning ascribed such term in Section 7.1.
1.70 "Leases" means all leases, subleases and other occupancy
agreements to which Seller is a party for any portion of, or interest in, the
Real Property, other than the Specialty License Agreements and the Anchor
Agreements, including all such occupancy agreements which may be made by Seller
after the date hereof and prior to Closing in accordance with the terms of this
Agreement.
1.71 "Losses" means all losses, claims, damages, liabilities, costs and
expenses, including reasonable attorney's fees and expenses.
1.72 "Losses Threshold" has the meaning ascribed such term in Section
9.8(b).
1.73 "Mall" means that portion of the Property located at a particular
shopping center. The Malls are listed on Schedule 1.73 attached hereto.
1.74 "Marketing Fund Balance" means the fund or funds held by Seller on
behalf of tenants at a Mall or the Malls for marketing and promotional
activities.
1.75 "Park Plaza Premises" has the meaning ascribed such term in
Section 3.2.
1.76 "PCBs" has the meaning ascribed such term in Section 9.3.
1.77 "Permitted Exceptions" means collectively the exceptions to title
to the Real Property listed on Schedule 1.77 attached hereto, and such other
exceptions
-7-
9
to title as are approved (or deemed approved hereunder) or waived (or deemed
waived hereunder) by Purchaser.
1.78 "Personalty" means all movable equipment, furniture, furnishings,
supplies and other personal property owned by Seller, which are now or may
hereafter be located on the Property or used in connection with the operation,
ownership, leasing, management or maintenance of the Property other than the
items, if any, listed on Schedule 1.78.
1.79 "Prepayment Consideration" has the meaning ascribed such term in
Section 3.2.
1.80 "Property" means collectively, the Real Property, the Personalty,
the Records, the Leases, the Specialty License Agreements, the Anchor
Agreements, the Contracts and the Intangibles.
1.81 "Proration Date" has the meaning ascribed to such term in Section
7.1.
1.82 "Purchase Price" has the meaning ascribed to such term in Section
2.2.
1.83 "Purchaser" means WXI/Z Southwest Malls Real Estate Limited
Partnership, a Delaware limited partnership, having business offices c/o Zamias
Services Inc, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
1.84 "Purchaser's Agents" has the meaning ascribed such term in Section
4.1.
1.85 "Rating Agencies" means the rating agencies which assigned a
rating to the debt evidenced or secured by the GMAC Loan Documents.
1.86 "Rating Agency Consent" means the consent or approval of each
Rating Agency to the transfer of the Real Property to Purchaser and the
substitution of Purchaser for Seller as the borrower under the GMAC Loan
Documents, to the extent such consent or approval is required by GMAC or the
GMAC Loan Documents as a condition to the granting or effectiveness of the GMAC
Consent or the assumption by Purchaser of the GMAC Loan Documents.
1.87 "RCRA" has the meaning ascribed such term in Section 9.3.
1.88 "Real Property" means (A) all of that certain land more
particularly described in Schedule 1.88 attached hereto, including the buildings
and all other
-8-
10
improvements, structures, fixtures, facilities and installations located
thereon, including all building systems and equipment relating thereto (except
trade fixtures, equipment and other items owned by tenants or other third
parties under the Leases, the Specialty License Agreements, the Anchor
Agreements or otherwise listed on Schedule 1.88), together with all easements,
covenants, rights, tenements, hereditaments and appurtenances thereunto
belonging or appertaining and (B) the interest of Seller under the Alexandria
Ground Leases.
1.89 "Records" means all permits, licenses, certificates of occupancy,
approvals, authorizations, plats, plans and surveys relating to the ownership or
operation of the Property or any part thereof or interest therein, to the extent
in Seller's possession or control.
1.90 "Remaining Seller GMAC Loan" has the meaning ascribed such term in
Section 3.4.
1.91 "Rentals" has the meaning ascribed such term in Section 7.1.
1.92 "Satisfactory Estoppel Certificate" has the meaning ascribed such
term in Section 5.4(c).
1.93 "Seller" means Southwest Shopping Centers, Co. II, L.L.C., a
Delaware limited liability company, having its business offices at 000 Xxxxx
Xxxxxx (Xxxxx 0000) Xxx Xxxx, Xxx Xxxx 00000-0000.
1.94 "SEC Delay" means FUR's inability to clear with the Securities and
Exchange Commission a definitive proxy statement with sufficient time to declare
a record date, mail proxy statements, solicit proxies and conduct a duly called
meeting in accordance with all applicable laws, rules and regulations and FUR's
organizational documents by the Shareholder Approval Deadline.
1.95 "Seller Ratification" has the meaning ascribed such term in
Section 14.2.
1.96 "Seller's Casualty Notice" has the meaning ascribed such term in
Section 10.1.
1.97 "Seller's Condemnation Notice" has the meaning ascribed such term
in Section 10.2.
1.98 "Seller's Files" means the written documentation made available to
Purchaser or Purchaser's Agents prior to the Due Diligence Termination Deadline
-9-
11
at the offices of Seller or FUR in Cleveland or Dallas or the on-site management
office at each Mall or otherwise delivered to Purchaser or Purchaser's Agents
prior to the Due Diligence Termination Deadline, it being understood and agreed
that Seller's Files shall only be deemed to include such documentation made
available in such Cleveland or Dallas or on-site management offices or delivered
to Purchaser prior to the Due Diligence Deadline and shall not be deemed to
include any additional, amended or different documentation made available in
such Cleveland or Dallas or on-site management offices (or anywhere else) or
delivered to Purchaser or included in Seller's books, records, or files after
the Due Diligence Termination Deadline.
1.99 "Seller's Title Insurance Policies" means the title insurance
policies insuring Seller with respect to the Real Property which are set forth
on Schedule 1.99.
1.100 "Shareholder Approval Deadline" means November 30, 1999, as the
same may be extended pursuant to Section 14.2(e).
1.101 "Specialty License Agreements" means all agreements or licenses
for a term of one year or less for occupancy of space within the Real Property
including license agreements which may be entered into after the date hereof and
prior to Closing in accordance with the terms of this Agreement. A schedule of
the Specialty License Agreements existing as of the date hereof is attached as
Schedule 1.101.
1.102 "Survey" means a survey of each parcel of the Real Property dated
on or after June 1, 1999, made by a surveyor or civil engineer duly licensed in
the state in which such parcel is located.
1.103 "Taxes" has the meaning ascribed such term in Section 5.2(a).
1.104 "Tenant" shall mean a tenant under a Lease.
1.105 "Tenant Costs" has the meaning ascribed such term in Section
8.1(d).
1.106 "Tenant Costs Escrow Account" has the meaning ascribed such term
in Section 8.1(d).
1.107 "Tenant Estoppel Certificate" has the meaning ascribed such term
in Section 5.4(b).
-10-
12
1.108 "Tenant Litigation Space" has the meaning ascribed such term in
Section 5.4(b).
1.109 "Testing" has the meaning ascribed such term in Section 4.2.
1.110 "Title Commitment" means a binder or commitment to be issued by
Title Insurer to Purchaser, providing for the issuance at the Closing to
Purchaser of the Title Policy.
1.111 "Title Insurer" means First American Title Insurance Company
(through its offices located in Xxx Xxxx, Xxx Xxxx xxx Xxxxx Xxx, Xxxxx).
1.112 "Title Objections Statement" has the meaning ascribed such term
in Section 5.3.
1.113 "Title Policy" means an Owner's Policy of Title Insurance issued
by the Title Insurer dated the date and time of Closing insuring Purchaser's fee
simple title to the Real Property (or with respect to the portions of the Real
Property that are subject to the Alexandria Ground Leases, Purchaser's leasehold
interests in such Real Property), free and clear of all liens, claims,
covenants, restrictions, exceptions, exclusions and other encumbrances other
than the Permitted Exceptions; provided that, at Purchaser's election, Chicago
Title Insurance Company may act as co-insurer or reinsurer with respect to the
Title Policy without creating any further liability or obligation on the part of
Seller.
1.114 "Valid Title Objections" has the meaning ascribed such term in
Section 5.3.
1.115 "Voluntary Encumbrances" has the meaning ascribed to such term in
Section 5.3.
1.116 "Voting Agreements" has the meaning ascribed such term in Section
2.3.
-11-
13
ARTICLE 2
AGREEMENT TO SELL
2.1 Agreement. Upon and subject to the terms and conditions contained
in this Agreement, Seller agrees to sell, convey, transfer and assign to
Purchaser, and Purchaser agrees to purchase from Seller, all of Seller's right,
title and interest in and to the Property; it being understood that Seller's
right, title and interest in the Intangibles shall be assigned to Purchaser to
the extent such Intangibles are owned and assignable by Seller.
2.2 Purchase Price. The purchase price for the Property (the "Purchase
Price") shall be ONE HUNDRED NINETY-ONE MILLION FIVE HUNDRED THOUSAND AND 00/100
DOLLARS ($191,500,000), allocated to the respective Malls as provided in Section
2.4 and adjusted as set forth herein and reflected on the closing statements to
be delivered at Closing, payable as follows:
(a) Simultaneously with the execution and delivery of this
Agreement, Purchaser shall deposit with Escrowee the sum of ONE MILLION AND
00/100 DOLLARS ($1,000,000) (the "Initial Deposit"; together with the Additional
Deposit, the "Deposit") by wire transfer of immediately available funds in
accordance with Escrowee's wiring instructions as set forth on Schedule 2.2(a)
annexed hereto (the "Escrowee Wiring Instructions"), which constitutes an
initial downpayment on account of the Purchase Price. The Deposit shall be held
and disbursed by Escrowee in accordance with the terms and conditions of the
Escrow Agreement;
(b) On or before the Due Diligence Termination Deadline,
Purchaser shall deposit with Escrowee the additional sum of NINE MILLION AND
00/100 DOLLARS ($9,000,000) as an additional downpayment on account of the
Purchase Price (the "Additional Deposit"), by wire transfer of immediately
available funds to Escrowee in accordance with the Escrowee Wiring Instructions;
(c) The outstanding principal amount of the GMAC Mortgage on
the date of Closing (after payment of the GMAC Park Plaza Release Price in
accordance with this Agreement) as certified by GMAC in the GMAC Estoppel
Certificate, by Purchaser assuming the GMAC Mortgage and the GMAC Loan Documents
at the Closing as provided in this Agreement; provided that if Purchaser
receives the GMAC Consent and the GMAC Estoppel Certificate and nonetheless
elects at Closing, in its sole discretion, to proceed with the Closing and not
to assume the GMAC Mortgage and GMAC Loan Documents, Purchaser shall, in
addition to payment of the Purchase Price, pay in full the GMAC Prepayment
-12-
14
Penalty at Closing, in which event the foregoing portion of the Purchase Price
shall be payable in cash and shall be added to the cash payment required to be
paid under subparagraph "(d)" below; and
(d) At the Closing, Purchaser shall deposit with Escrowee, by
wire transfer of immediately available funds in accordance with the Escrowee
Wiring Instructions, the balance of the Purchase Price, subject to prorations as
provided in Article 7 hereof.
2.3 Approvals. The parties hereto agree that this Agreement shall
automatically terminate (in which case the Initial Deposit shall promptly be
returned to Purchaser and neither party to this Agreement shall have any further
obligation or liability to the other party under this Agreement except for those
provisions which are expressly stated herein to survive termination of this
Agreement) if (a) Purchaser does not receive a copy of a resolution of the Board
of Trustees of FUR, certified by an officer of FUR as true and correct,
approving this Agreement and the transactions contemplated hereby and
recommending that the shareholders of FUR consent to and approve the
transactions contemplated hereby (the "Board Resolution") and (b) Purchaser does
not receive, in the form heretofore agreed upon by Seller and Purchaser, a
voting agreement and irrevocable proxy executed by (i) Gotham Partners, L.P.,
Gotham Partners III, L.P. and Gotham Partners International Ltd. and (ii) Apollo
Real Estate Investment Fund II, L.P., each a shareholder of FUR, pursuant to
which such shareholders shall agree to vote to approve the transactions
contemplated hereby (the "Voting Agreements"), in each case on or prior to July
16, 1999.
2.4 Purchase Price Allocation. Seller and Purchaser agree that the
Purchase Price, subject to adjustment as set forth in this Agreement, shall be
allocated among the Malls as agreed upon by Seller and Purchaser after the
Effective Date. Seller and Purchaser shall reasonably cooperate from and after
the Effective Date in determining such allocation and the allocation of any
adjustments to the Purchase Price. No part of the Purchase Price shall be
allocated to the Personalty.
ARTICLE 3
GMAC MORTGAGES
3.1 Description of GMAC Mortgages. The Property is subject to the
mortgages and deeds of trust described on Schedule 3.2(b) attached hereto
(collectively, the "GMAC Mortgage"), which secure a promissory note in the
original
-13-
15
principal amount of $165,000,000.00 payable to GMAC Commercial Mortgage
Corporation (together with any successor to GMAC Commercial Mortgage Corporation
under the GMAC Loan Documents, "GMAC"). The GMAC Mortgage and the GMAC Loan
Documents shall constitute Permitted Exceptions.
3.2 Assumption of GMAC Mortgage; GMAC Prepayment Penalty; GMAC Release.
(a) Purchaser acknowledges that there is a substantial
prepayment penalty applicable to the GMAC Loan Documents and that Seller shall
not be obligated to bear the cost of such prepayment penalty (other than the
GMAC Park Plaza Prepayment Penalty) or to pay-off the GMAC Mortgage at Closing.
Accordingly, if Purchaser and Seller have not received the GMAC Consent and the
Rating Agency Consent by the date that is seventy (70) days after the date on
which Purchaser receives the Board Resolution and the Voting Agreements (the
"GMAC Termination Deadline"), this Agreement will automatically terminate (in
which case the Additional Deposit shall promptly be returned to Purchaser and
the Initial Deposit shall be promptly paid to Seller and neither party to this
Agreement shall have any further obligation or liability to the other party
under this Agreement except for those provisions which are expressly stated
herein to survive termination of this Agreement). Notwithstanding anything to
the contrary contained in this Agreement, if the GMAC Consent and the Rating
Agency Consent are received by Seller and Purchaser prior to the GMAC
Termination Deadline (as the same may be extended) and nonetheless GMAC does not
permit the assumption of the GMAC Mortgage by Purchaser, then either Purchaser
or Seller shall have the right to terminate this Agreement by written notice
delivered to the other on or prior to Closing, in which case the Deposit shall
be promptly returned to Purchaser and neither party to this Agreement shall have
any further obligation or liability to the other party under this Agreement
except for those provisions which are expressly stated herein to survive
termination of this Agreement; provided that Purchaser shall not be entitled to
the return of the Deposit, and the Deposit shall be paid to Seller, in the event
that the sole reason GMAC does not permit the assumption of the GMAC Mortgage by
Purchaser (even though the GMAC Consent and the Rating Agency Consent are
received by Seller and Purchaser prior to the GMAC Termination Deadline) is
because of the fault of Purchaser. As used herein, the "GMAC Prepayment Penalty"
shall mean the entire prepayment penalty applicable to payment in full of the
GMAC Mortgage including, without limitation, the "Prepayment Consideration," as
defined in the Promissory Note dated as of September 30,1996, in the original
principal amount of $165,000,000.00 made by Seller in favor of GMAC, as
applicable to the payment in full of the GMAC Mortgage.
-14-
16
(b) Purchaser and Seller shall use best efforts, including by
executing splitter and other documents reasonably required by GMAC which are not
adverse to either such party but without being required to expend any sums other
than the GMAC Charges and the GMAC Assumption Fees which are payable as
hereinafter provided, to cause (i) GMAC to deliver to Purchaser and Seller the
GMAC Consent by the GMAC Termination Deadline, (ii) the Rating Agencies to
deliver to Purchaser and Seller the Rating Agency Consent by the GMAC
Termination Deadline and (iii) GMAC to deliver to Seller at Closing a (A) full
and complete unconditional release of Seller, each guarantor and indemnitor and
all principals and affiliates of Seller (including, without limitation, FUR and
FUM) with respect to all of their respective obligations and liabilities under
the GMAC Loan Documents, including, without limitation (1) all guarantees and
indemnities and (2) the documents listed on Schedule 3.2(b) annexed hereto and
made a part hereof and (B) an unconditional release from the GMAC Mortgage (and
all other GMAC Loan Documents) of the premises commonly known as the Xxxx Xxxxx
Xxxx, Xxxxxx Xxxx, Xxxxxxxx ("Park Plaza Premises"), each in form and substance
satisfactory to Seller (the releases described in clauses "(i)" and "(ii)"
above, collectively, the "GMAC Release.")
3.3 GMAC Assumption Fees and Charges. Seller shall pay at Closing an
assumption or transfer fee of up to 1.0% of the outstanding principal balance of
the GMAC Mortgage as set forth in the GMAC/Granite Letter (the "GMAC Assumption
Fees"). Purchaser shall pay all other fees (unrelated to the Park Plaza
Premises) in connection with the assumption of the GMAC Loan Documents by
Purchaser (other than any assumption or transfer fees charged by GMAC in
connection with the assumption by Purchaser of the GMAC Loan Documents),
including title insurance endorsements, any mortgage tax applicable to the
assumption of the GMAC Loan Documents by Purchaser or transactions consummated
in connection therewith and all expenses of GMAC and its attorneys and the
Rating Agencies and their attorneys (collectively, the "GMAC Charges"). As used
herein, the term "GMAC Granite Letter" shall mean that certain letter dated
December 2, 1998 from GMAC Commercial Mortgage to Xxxxxx Xxxxxxxx of Granite
Partners LLC, a copy of which Purchaser hereby acknowledges receipt.
3.4 Notwithstanding anything to the contrary contained in this
Agreement, Seller shall have the sole right to negotiate for and attempt to
obtain GMAC's agreement (i) to the reduction or elimination of the GMAC Park
Plaza Release Price and/or the GMAC Park Plaza Prepayment Penalty and/or (ii) to
keep Seller or an affiliate of Seller as the borrower with respect to a portion
of the GMAC Mortgage (or to make a new mortgage loan to Seller or affiliate)
equal to the Allocated Loan Amount (as defined in the GMAC Loan Agreement) with
respect to the Park Plaza Premises or such other amount as GMAC may agree to or
require
-15-
17
(the "Remaining Seller GMAC Loan"), which Remaining Seller GMAC Loan may
encumber the Park Plaza Premises and/or other properties other than the
Property; provided that in no event shall any agreement between Seller and GMAC
relating to clauses (i) or (ii) above result in any modification to the GMAC
Loan Documents without the consent of Purchaser, except that the GMAC Loan
Documents may be modified without Purchaser's consent to release the Park Plaza
Premises and to reduce the outstanding principal amount of the GMAC Mortgage by
an amount up to the Allocated Loan Amount (as defined in the GMAC Loan
Agreement) with respect to the Park Plaza Premises and as otherwise reasonably
required solely to accomplish such release and reduction. Any Remaining Seller
GMAC Loan shall not be cross-defaulted or cross-collateralized (or otherwise
dependent or related in any manner on or to) with the GMAC Mortgage assumed by
Purchaser and the GMAC Mortgage as assumed by Purchaser at Closing shall not
provide that it is cross-defaulted or cross-collateralized (or otherwise
dependent or related in any manner on or to) with the Remaining Seller GMAC
Loan. As used herein, the term "GMAC Park Plaza Release Price" shall mean the
payment required under Section 4.(a) (A.) of the GMAC Loan Agreement as
applicable to a release of the Park Plaza Premises from the GMAC Mortgage, as
same may be reduced, adjusted or waived as a result of negotiation or as
otherwise may be agreed to by GMAC. As used herein, the "GMAC Park Plaza
Prepayment Penalty" shall mean the "applicable Prepayment Consideration," as
used in Section 4.(a)(B) of the GMAC Loan Agreement, as applicable to the
prepayment attributable to the payment of the GMAC Park Plaza Release Price, as
same may be reduced, adjusted or waived as a result of negotiation or as
otherwise may be agreed to by GMAC.
ARTICLE 4
DUE DILIGENCE
4.1 Due Diligence Reviews.
(a) At Purchaser's sole cost and expense, Purchaser and its
employees, consultants, engineers, licensees, contractors, surveyors,
appraisers, attorneys, auditors and other agents or representatives
(collectively, "Purchaser's Agents") shall have the right, subject to the
provisions of Section 4.2(a), prior to the date that is twenty-five (25) days
after the date on which Purchaser receives the Board Resolution and the Voting
Agreements (the "Due Diligence Termination Deadline") to inspect, examine,
survey, obtain engineering inspections, conduct soil tests, environmental tests
and inspections of the Real Property, examine and review all Evaluation
Material, and conduct such other tests, studies, reviews and inspections as
Purchaser may reasonably elect (including the testing and review of
-16-
18
computer files and databases containing information on tenants); provided that
the same is permitted under the terms of the applicable Anchor Agreement, Lease
or Specialty License Agreement, as the case may be. Purchaser may, by written
notice to Seller, extend the Due Diligence Termination Deadline by one day for
each day prior to the Due Diligence Termination Deadline (as the same may be
extended) on which Seller's Files are not made available to Purchaser for at
least nine (9) hours, if such day is a Business Day, or eight (8) hours, if such
day is not a Business Day. Seller shall reasonably cooperate with Purchaser in
conducting the foregoing inspections and Seller shall make available to
Purchaser wherever located all Evaluation Material in the possession or under
the control of Seller. Upon not less than one (1) Business Day's prior written
notice to Seller, Purchaser shall have reasonable access to the Real Property
and the Evaluation Material wherever located, subject to the terms of the
applicable Anchor Agreements Leases and Specialty License Agreements; provided
that a representative of Seller may accompany Purchaser and Purchaser's Agents;
provided further that the unavailability or failure of a representative of
Seller to accompany Purchaser and Purchaser's Agents shall not limit the access
of Purchaser and Purchaser's Agents to the Real Property and the Evaluation
Material. Purchaser shall, subject to the terms of Section 8.3, be permitted to
duplicate all or so much of the Evaluation Material as Purchaser and Seller deem
appropriate. Purchaser shall reimburse Seller for any reasonable out-of-pocket
expenses incurred by Seller, at Purchaser's or Purchaser's Agents' request, in
connection with Purchaser's due diligence and other investigations pursuant to
this Article 4. Purchaser shall cause Purchaser's Agents to comply with their
obligations under Section 8.3.
(b) Purchaser shall have the right to terminate this
Agreement; provided that Seller shall have received from Purchaser written
notice of such election to terminate (the "Due Diligence Termination Notice") no
later than the Due Diligence Termination Deadline. If Seller shall have received
the Due Diligence Termination Notice by the Due Diligence Termination Deadline,
then this Agreement shall be terminated and the Deposit (or so much thereof as
shall have been paid by Purchaser) and any Interest Income shall be retained by
Seller and, thereupon, neither party to this Agreement shall have any further
obligation or liability to the other party under this Agreement except for those
provisions which are expressly stated herein to survive termination of this
Agreement. If Seller shall not receive the Due Diligence Termination Notice by
the Due Diligence Deadline, Purchaser shall have no right to terminate this
Agreement except as may be expressly provided elsewhere in this Agreement.
Notwithstanding anything to the contrary contained in this Agreement (including
any limitations on remedies provided elsewhere in this Agreement), in the event
that (i) Purchaser terminates this Agreement by delivery of a Due Diligence
Termination Notice in accordance with this Section 4.1(b) and (ii) Seller enters
into a written agreement with any person or entity other than
-17-
19
Purchaser to sell all or any portion of the Real Property within six (6) months
after the date on which this Agreement is so terminated, then Seller shall pay
to Purchaser the amount, if any, by which the purchase price to be paid for the
Real Property (or portion thereof) under such other written agreement exceeds
the amount of the Purchase Price allocable to such Real Property (or portion
thereof) hereunder; provided that the amount required to be paid by Seller shall
not exceed the amount of the Initial Deposit. The obligations of Seller in the
preceding sentence shall survive the termination of this Agreement pursuant to
this Section 4.1(b) for seven (7) months.
4.2 (a) Without limiting Purchaser's obligations in the conduct of its
due diligence as provided in Section 4.1 above or its obligations (or that of
its affiliates) under Section 8.3, (i) Purchaser shall not, and shall cause
Purchaser's Agents not to, conduct any site inspection without first contacting
and making arrangements for an inspection with Xxxx Xxxxxxx (telephone no. (216)
000-0000) or Xxxxx Cocks (telephone no. (000) 000-0000) and (ii) Purchaser shall
not, and shall cause Purchaser's Agents not to, conduct any soil test or
sampling or any boring, digging, drilling or other physical intrusion of the
Properties and/or the improvements thereon other than Phase I environmental site
assessments (collectively, "Testing") without the prior written consent of
Seller, which consent shall not be unreasonably withheld or delayed unless the
same is prohibited by the terms of the applicable Anchor Agreement, Lease or
Specialty License Agreement, as the case may be; it being understood that Seller
may withhold its consent with respect to Phase II environmental site assessments
for any reason or for no reason.
(b) If Seller consents to any Testing (i) Purchaser and
Purchaser's Agents shall maintain property damage and liability insurance
policies in form and amounts acceptable to Seller (and naming, as additional
insureds, Seller and all mortgage lenders with respect to the Real Property as
may be required by Seller) prior to commencing any such Testing, (ii) at the
request of Seller, Purchaser and Purchaser's Agents shall provide Seller with
certificates of insurance and insurance binders evidencing the maintenance of
such insurance and (iii) upon completion of Testing at any particular Mall,
Purchaser and Purchaser's Agents shall restore promptly, at Purchaser's sole
cost and expense, the Mall to its condition existing prior to such Testing. In
performing any site inspection, Testing or due diligence with respect to a Mall,
Purchaser agrees and shall cause Purchaser's Agents to not unreasonably
interfere with the operation of such Mall or unreasonably disturb the occupancy
of any tenant at such Mall. A representative of Seller may accompany Purchaser
and Purchaser's Agents in connection with the performance of any site
inspection, Testing or due diligence with respect to any Mall; provided that the
unavailability or failure of a representative of Seller to accompany Purchaser
and Purchaser's Agents shall not limit the ability of Purchaser and Purchaser's
Agents
-18-
20
to conduct any such site inspections, Testing or due diligence. Purchaser hereby
indemnifies and holds harmless Seller and all of its principals and affiliates
from and against any and all Losses that may arise in connection with any and
all claims arising out of the acts or alleged acts of Purchaser or any of
Purchaser's Agents with respect to any site inspection or Testing or other act
pursuant to or in violation of the provisions of this Article 4, except to the
extent caused by the negligence or willful acts of Seller, its employees or
representatives.
(c) The results of all Testing shall be promptly shared with
Seller and copies of all written reports of the results of all Testing shall be
delivered to Seller, in each case, only if Purchaser delivers a Due Diligence
Termination Notice to Seller or otherwise terminates this Agreement. The
obligations of Purchaser under this Article 4 shall survive the termination of
this Agreement.
ARTICLE 5
ESCROW, TITLE, SURVEY and ESTOPPEL CERTIFICATES
5.1 Escrow; Disposition of Deposit.
(a) The Closing of the transaction contemplated hereby shall
be through the Escrow pursuant to the provisions of this Article 5. The Deposit
(or so much thereof as shall have been paid by Purchaser) shall be paid (i) to
Seller at and upon the Closing or in accordance with the provisions of Section
11.2 or as provided in the proviso to the third sentence of Section 3.2(a), (ii)
to Seller immediately upon a termination by Purchaser of this Agreement in
accordance with the provisions of Section 4.1(b) or (iii) to Purchaser
immediately upon any other termination of this Agreement (by Purchaser or Seller
or otherwise) in accordance with the provisions of this Agreement; provided
that, in the event this Agreement terminates pursuant to the second sentence of
Section 3.2(a) as a result of the GMAC Consent and the Rating Agency Consent not
being timely obtained, the Initial Deposit shall be paid to Seller and the
Additional Deposit shall be paid to Purchaser. All interest and income earned on
the Initial Deposit and the Additional Deposit (the "Interest Income") shall be
paid to Purchaser unless the Closing does not occur and, as a result, the
Deposit (or the Initial Deposit) is forfeited to Seller pursuant to Section
3.2(a), Section 4.1(b) or Section 11.2, in which case the Interest Income on the
Deposit (or portion thereof) which is forfeited to Seller shall be paid to
Seller. This Agreement shall not be merged into the Escrow Agreement, but the
Escrow Agreement shall be deemed auxiliary to this Agreement and, as between the
parties hereto, the provisions of this Agreement shall govern and control. If
there is any
-19-
21
conflict between the Escrow Agreement and this Agreement, this Agreement shall
control.
(b) In the event that any amounts which have been deposited
with Escrowee pursuant to this Agreement are required to be paid or delivered
pursuant to the terms of this Agreement, Seller and Purchaser each agree that it
will promptly instruct Escrowee (in writing with a copy to the other party) to
promptly pay or deliver the same to the party entitled thereto. The provisions
of this Section 5.2(b) shall survive the termination of this Agreement until all
amounts required to be paid under this Agreement have been paid.
5.2 Escrow, Title Costs and Transfer Taxes. Title insurance, escrow
charges and other costs shall be arranged and paid as follows:
(a) Seller and Purchaser shall each pay 50% of the cost of (i)
the Escrow, (ii) obtaining the Title Commitments, Title Policies and title
abstracts and examinations, (iii) obtaining the Surveys, (iv) recording the
Deeds from Seller to Purchaser and any other documents and (v) the aggregate of
any and all real property transfer tax, deed tax, sales tax and other similar
taxes applicable to the conveyance and transfer of the Real Property and
Personalty pursuant to this Agreement (collectively, the "Taxes").
(b) Purchaser shall pay the cost of obtaining any endorsements
to the Title Policies.
(c) Seller shall pay the cost of and have the responsibility
for recording any documents required to satisfy or release Defects or to insure
over the same to the extent Seller is obligated or elects to cure such Defects
in accordance with Section 5.3.
(d) The obligations of Seller and Purchaser pursuant to this
Section 5.2 shall survive the Closing.
5.3 Defects in Title Commitments or Surveys.
(a) Seller shall promptly after executing this Agreement order
from the Title Insurer the Title Commitments and Surveys with respect to each
Mall and shall cause a copy thereof to be delivered to Purchaser and its
attorneys concurrently with the delivery thereof to Seller or Seller's
attorneys. By the later of (i) ten (10) days after receipt of a Title Commitment
or Survey, as the case may be, with respect to a Mall or (ii) the Due Diligence
Termination Deadline, Purchaser's attorneys shall send to Seller's attorneys a
written statement (each a "Title
-20-
22
Objections Statement") setting forth any matter noted in or shown by such Title
Commitment or Survey, as the case may be, which Purchaser deems to be a Defect
in accordance with the provisions of this Agreement. If the Title Objections
Statement provided above shall not be timely delivered, as provided above, then
any title exceptions or state of facts noted in or shown by such Title
Commitment or Survey shall be deemed waived by Purchaser and shall constitute
Permitted Exceptions. Any title exceptions or state of facts noted in or shown
by such Title Commitment or Survey which are not set forth in the Title
Objections Statement shall likewise be deemed waived by Purchaser and shall
constitute Permitted Exceptions.
(b) Seller shall have the right but not the obligation to cure
the Defects that have not been waived (or deemed waived) by Purchaser in
accordance with the provisions of Section 5.3(a) (collectively "Valid Title
Objections" and, individually, "Valid Title Objection"); provided that Seller
shall be obligated to cure or remove from or against the Property any mortgages
created by or in favor of Seller or its affiliates (other than the GMAC Mortgage
and GMAC Loan Documents) and any liens and encumbrances voluntarily created by
Seller or its affiliates other than Permitted Exceptions (collectively,
"Voluntary Encumbrances") and Purchaser's remedies with respect to a failure to
cure such Voluntary Encumbrances shall not be limited as described in Section
5.3(c). In order to cure any Valid Title Objections, Seller shall be entitled
(provided that Seller shall provide such notice to Purchaser (i) at least two
(2) Business Days before the Closing Date (or, if the Closing has previously
been adjourned, the then current Adjourned Date) or (ii) on the Closing Date or
such then current Adjourned Date if Seller receives the applicable Title
Objections Statement after the date which is two (2) Business Days prior to the
Closing Date or such then current Adjourned Date) to adjourn the Closing from
time to time to a date ("Adjourned Date") specified by Seller upon five (5)
days' notice to Purchaser but not beyond a date which is more than sixty (60)
days after the Closing Date and in no event is later than the Closing Deadline.
If Seller elects to adjourn the Closing, and cures the Valid Title Objections on
or before the Adjourned Date, then the Closing shall occur on such Adjourned
Date specified by Seller in accordance with the provisions of this Agreement
without any reduction in the Purchase Price hereunder.
(c) If Seller elects by notice at any time not to cure any
Valid Title Objection other than a Voluntary Encumbrance or Seller fails to cure
a Valid Title Objection other than a Voluntary encumbrance on or before the
Adjourned Date, then Purchaser's sole right and remedy shall be, on the terms
and conditions set forth below, either: (A) to terminate this Agreement; or (B)
to complete the purchase in accordance with this Agreement without reduction or
abatement in the Purchase Price. Purchaser shall exercise its option pursuant to
clause (A) above by notice
-21-
23
given to and received by Seller on the earlier of (i) within five (5) days after
the giving of Seller's notice to Purchaser that Seller will not cure all the
Valid Title Objections and (ii) the Adjourned Date. If Purchaser exercises its
option pursuant to clause (A) above, then Purchaser shall be entitled to receive
a refund of the Deposit. Upon such termination, except as set forth in the
preceding sentence, neither party shall have any further liability or obligation
to the other party under this Agreement except for those provisions which are
expressly stated herein to survive termination of this Agreement. If Purchaser
shall fail to send a written notice to Seller exercising Purchaser's option set
forth under clause (A) above within the applicable period, then it shall be
deemed that Purchaser exercised the option set forth in clause (B) above.
(d) Purchaser may notify Seller in writing of any Defect with
respect to a Mall (i) raised by the Title Insurer or the surveyors between the
deadline for providing Seller with a Title Objection Statement with respect to
such Mall and the Closing and (ii) not disclosed by the Title Insurer prior to
the deadline for providing Seller with a Title Objection Statement with respect
to such Mall. If Purchaser provides such notice to Seller by delivery of a Title
Objections Statement by the earlier of (x) within ten (10) days after Purchaser
receives notice of such Defect from the Title Insurer or receives an update to
the Survey showing such Defect, (y) the Closing Date, or if the Closing has
previously been adjourned, the Adjourned Date, then such Defect will be deemed
to be a Valid Title Objection and Purchaser and Seller shall have the same
rights and obligations with respect to such Valid Title Objection as apply under
Sections 5.3(a), (b) and (c) as if such Valid Title Objection had been shown in
a Title Objections Statement that had been timely delivered in accordance with
Section 5.3(a). If Purchaser fails to timely provide such notice, then such
Defect shall be deemed waived by Purchaser and shall constitute a Permitted
Exception. Any such Defect which is not set forth in the Title Objection
Statement shall likewise be deemed waived by Purchaser and shall constitute a
Permitted Exception.
(e) Nothing contained in this Agreement shall be construed as
a representation of the state of title to the Property or to require Seller to
bring any action or proceeding or otherwise to incur any expenses to render
title to the Property insurable or marketable or to cure any Valid Title
Objections other than Voluntary Encumbrances. Any attempt by Seller to cure a
title objection shall not be construed as an admission by Seller that such
objection is a Valid Title Objection under this Agreement.
-22-
24
5.4 Estoppel Certificates.
(a) Seller shall request from each party (other than Seller,
any affiliate or any of their respective predecessors in interest) to an Anchor
Agreement that is in effect on the Due Diligence Termination Deadline (each, an
"Anchor" and, collectively, the "Anchors"), other than those Anchor Agreements
specified on Schedule 5.4(a) annexed hereto and other than an Anchor Agreement
under which the Anchor has vacated the leased premises due to the expiration of
the lease term or the default of the Anchor (in each case as certified by
Seller) (collectively, the "Excluded Anchor Agreements"), an estoppel
certificate in any one of the following forms: (x) in the form required to be
delivered by the respective Anchor as set forth in the applicable Anchor
Agreement, (y) an estoppel certificate substantially in the form of Exhibit F
attached hereto or (z) an estoppel certificate substantially in the form of the
standard form of tenant estoppel certificate (or reciprocal easement agreement
estoppel certificate, as the case may be) customarily given by the respective
Anchor (as applicable, each, an "Anchor Estoppel Certificate"); provided,
however, that Seller shall deliver certificates to the Purchaser with respect to
the Excluded Anchor Agreements containing the form and substance of the
applicable Anchor Estoppel Certificates. All certificates delivered by Seller
shall survive the Closing for six (6) months and inure to the benefit of
Purchaser, its successors and assigns and any lender providing financing to
Purchaser.
(b) Seller shall request from each Tenant occupying any space
at the Real Property on the Due Diligence Termination Deadline estoppel
certificates in form required to be delivered by such Tenant as set forth in the
applicable Lease, or, if no such form shall be provided therein, then
substantially in the form of Exhibit G attached hereto (as applicable, each, a
"Tenant Estoppel Certificate") exclusive of (1) space covered by the leases
listed on Schedule 5.4(b) ("Tenant Litigation Space"), (2) space covered by any
lease with Tandy or Radio Shack and (3) space which is the subject of (i) a
Lease under which the Tenant has vacated the leased premises due to the
expiration of the lease term or the default of the Tenant (in each case as
certified by Seller), (ii) an Anchor Agreement or (iii) a Specialty License
Agreement.
(c) An Anchor Estoppel Certificate or a certificate delivered
by Seller with respect to an Excluded Anchor Agreement or a Tenant Estoppel
Certificate shall be deemed to be satisfactory (a "Satisfactory Estoppel
Certificate") only if it satisfies each of the following conditions: (i) it is
executed by the applicable Anchor, Tenant or Seller, as applicable, and is (A)
substantially in the form of Exhibit F or Exhibit G, as the case may be, (B) in
the form provided for in the applicable Anchor Agreement or Lease with the
information specifically required by the respective Lease or Anchor Agreement,
or (C) in the form customarily given by
-23-
25
the applicable Anchor, (ii) it does not contradict Seller's representation and
warranty in Section 9.2(d) that Seller's Files contain a true and correct copy
of any and all leases, reciprocal easement agreements, subleases, licenses or
other occupancy agreements affecting all or any portion of the Real Property
(except for modifications after the Effective Date in accordance with Section
8.1(b)(ii)) and (iii) it is consistent with the applicable Anchor Agreement or
Lease set forth in Seller's Files. If at any time whether before, at or after
the Closing, Seller shall deliver to Purchaser an Anchor Estoppel Certificate
with respect to an Excluded Anchor Agreement, (1) any previously delivered
certificate of Seller shall be deemed of no further force and effect and (2)
Seller shall no longer be obligated to deliver a certificate of Seller with
respect to such affected Excluded Anchor Agreement. Purchaser shall not be
entitled to require Seller to procure a later dated Anchor Estoppel Certificate
or Tenant Estoppel Certificate on account of any adjournment of the Closing.
(d) Seller shall request an estoppel certificate from GMAC
(the "GMAC Estoppel Certificate") pursuant to which GMAC shall certify (1) the
outstanding principal amount of the GMAC Mortgage (and accrued and unpaid
interest thereon) as of the Closing (after payment of the GMAC Park Plaza
Release Price), (2) as true, correct and complete, copies of all of the GMAC
Loan Documents and that the documents listed in Schedule 3.2(b) are all of the
substantive or operative documents (or modifications thereof) relating to the
loan secured by the GMAC Mortgage, (3) that all payments due to GMAC or its
attorneys or agents under the GMAC Loan Documents prior to the Closing have been
made and (4) that GMAC has not provided Seller with written notice of, and has
no knowledge of, any default by Seller under any of the GMAC Loan Documents. In
the case of clauses (3) and (4), if GMAC certifies the information described in
such clauses but dos not use the exact wording set forth above, such
certification shall be deemed acceptable if it otherwise complies in substance
with the definition of GMAC Estoppel Certificate.
ARTICLE 6
CLOSING
6.1 Closing Date. The Closing shall take place at 10:00 a.m. New York,
New York time on the Closing Date at the office of Seller or its attorneys in
New York, New York. Time shall be of the essence with respect to the obligation
of the parties to close on the transactions contemplated by this Agreement by
the Closing Date, subject to adjournment as may be expressly provided for in
this Agreement.
-24-
26
6.2 Escrow. The purchase and sale shall be closed through the Escrow
which shall be created by Seller, Purchaser and Escrowee pursuant to the Escrow
Agreement.
6.3 Deliveries.
(a) On or before the Closing Date, Seller shall deposit or
cause to be deposited into the Escrow the following:
(i) recordable deeds in the forms annexed hereto as
EXHIBIT H (each, a "Deed" and, collectively, the "Deeds") transferring to
Purchaser fee simple title to each parcel of the Real Property, subject only to
the Permitted Exceptions;
(ii) the original executed copies of all Leases,
Specialty License Agreements, Anchor Agreements and Contracts or copies
certified to be true and correct, if the executed copies are not available;
(iii) the original executed copies of (A) all Anchor
Estoppel Certificates and Tenant Estoppel Certificates obtained by Seller, (B)
all certificates delivered by Seller pursuant to Section 5.4 and (C) the GMAC
Estoppel Certificate;
(iv) copies of all warranties, guarantees, service
manuals and other documentation in the possession of or under the control of
Seller, its agents or any affiliate of Seller pertaining to building systems and
equipment;
(v) all keys and combinations to locks relating to
the Property that are in the possession of or under the control of Seller, its
agents or any affiliate of Seller;
(vi) any documentation required to be executed by
Seller with respect to any state, county, or local sales or transfer taxes
applicable to the conveyance or transfer of the Real Property or Personalty
pursuant to this Agreement;
(vii) a rent roll as of the Closing Date certified to
Purchaser and the Title Insurer by Seller;
(viii) notices to Tenants and Anchors regarding the
consummation of the sale and assignment of Leases and Anchor Agreements pursuant
to this Agreement and the transfer to Purchaser of all security deposits under
their respective Leases and Anchor Agreements;
-25-
27
(ix) a FIRPTA Affidavit executed by Seller;
(x) the GMAC Assumption Fees; and
(xi) any additional documents required hereunder to
be executed by Seller or that Purchaser reasonably determines to be necessary to
the proper consummation of the transaction contemplated by this Agreement
(provided the same do not materially increase the costs to, or liability or
obligations of, the party delivering the same hereunder in a manner not
otherwise provided for herein).
(b) On or before the Closing Date, Purchaser shall deposit
into the Escrow the following:
(i) the Purchase Price, adjusted as set forth herein
and reflected on the closing statement described in Section 6.3(c)(i) (the
"Adjusted Purchase Price");
(ii) the GMAC Reserves Reimbursement;
(iii) the GMAC Park Plaza Release Price;
(iv) the GMAC Park Plaza Prepayment Penalty;
(v) the GMAC Charges;
(vi) any documentation required to be executed by
Purchaser with respect to any state, county, or local sales and transfer taxes
applicable to the conveyance or transfer of the Real Property and Personalty
pursuant to this Agreement; and
(vii) any additional documents required hereunder to
be executed by Purchaser or that Seller reasonably determines to be necessary to
the proper consummation of the transaction contemplated by this Agreement
(provided the same do not materially increase the costs to, or liability or
obligations of, the party delivering the same hereunder in a manner not
otherwise provided for herein).
(c) On or before the Closing, Seller and Purchaser shall
jointly deposit into the Escrow the following:
(i) a closing statement in quadruplicate prepared in
accordance with the provisions of this Agreement and otherwise in form and
substance reasonably satisfactory to the parties hereto;
-26-
28
(ii) the Assignment of Leases and Specialty License
Agreements;
(iii) the Assignment of Contracts;
(iv) the Xxxx of Sale and Blanket Conveyance;
(v) the Assignment of Anchor Agreements;
(vi) the Alexandria Ground Lease Assignments; and
(vii) the aggregate of any and all costs specified in
Section 5.2(a) (to be funded 50% by each of Seller and Purchaser with
appropriate adjustment for amounts previously paid by either party).
(d) At least seven (7) days prior to the Closing, Seller shall
deliver to Purchaser electronic copies of all computer files and databases
containing information on tenants.
(e) Provided that Seller has satisfied the other conditions to
Purchaser's obligation to effect the Closing set forth in Section 6.5, at the
written direction of Seller, Purchaser will cause any part of the Purchase Price
that Purchaser is required to pay pursuant to Section 2.2(d) to be applied to
one or more items that Seller is required to pay under Section 6.3, and Seller
shall not be deemed in default (or be deemed to have failed to satisfy a payment
obligation required to be satisfied by Seller as a condition to the Closing)
with respect to its obligation to pay such amounts to the extent it so directs
Purchaser to pay.
(f) The provisions of this Section 6.3 shall survive the
Closing for a period of three (3) months.
6.4 Closing.
(a) At Closing, Escrowee shall:
(i) record or cause the recordation or file or cause
to be filed, as appropriate, the following documents in the appropriate
recording and filing offices of the appropriate jurisdictions:
(A) the Deed;
(B) the Alexandria Ground Leases
Assignments;
-27-
29
(C) the Assignment of Leases and Specialty
License Agreements;
(D) the Assignment of Anchor Agreements;
(E) the documentation, if applicable, with
respect to any state, county, or local sales and transfer taxes applicable to
the conveyance or transfer of the Real Property and Personalty pursuant to this
Agreement;
(ii) pay the Adjusted Purchase Price to Seller;
(iii) pay the Interest Income to Purchaser;
(iv) pay the Taxes to the appropriate governmental
authorities;
(v) pay the GMAC Charges and GMAC Assumption Fees to
GMAC or its designee;
(vi) pay the GMAC Park Plaza Release Price and the
GMAC Park Plaza Prepayment Penalty to GMAC or its designee;
(vii) pay the GMAC Reserves Reimbursement to Seller;
(viii) deliver to Seller duplicate originals of all
documents described in Subsections 6.3(b) (vi) and (vii) and Subsection 6.3(c)
above;
(ix) deliver to Purchaser duplicate originals of the
documents described in Sections 6.3 (a) and 6.3(c) above; and the Title Policy;
and
(x) deliver as directed by Seller or Purchaser such
other documents as may be deposited with Escrowee.
(b) At Closing, Seller shall deliver to Purchaser possession
and occupancy of the Properties, subject to the Permitted Exceptions.
(c) At Closing, Seller shall deliver to Purchaser, or shall
otherwise leave at the Property, all Records.
(d) On the Closing Date, Seller shall file the 1099-S Form
required by the Internal Revenue Service.
-28-
30
(e) On the Closing Date, (i) Seller shall deliver to Title
Insurer an affidavit in the form of Exhibit I attached hereto and (ii) Seller
and Purchaser shall each deliver to Title Insurer such evidence as the Title
Insurer may require as to the authorization of Seller or Purchaser, as the case
may be, to consummate the transactions contemplated by this Agreement and the
authority and incumbency of the person or persons executing documents on behalf
of Seller or Purchaser, as the case may be.
6.5 Conditions Precedent to Obligation of Purchaser. The obligation of
Purchaser to effect the Closing shall be subject to the fulfillment or written
waiver on or before the date of Closing of all of the following conditions:
(a) Each of the documents and amounts required to be delivered
by Seller pursuant to Section 6.3 shall have been delivered as provided therein.
(b) All of the representations and warranties of Seller
contained in Section 9.2 shall be true and correct in all respects as of the
date hereof and as of the date of the Closing as though made at and as of the
date of the Closing (provided that representations and warranties which are
stated to be made as of the Effective Date need be true and correct only as of
the Effective Date); provided that, if the failure of Seller's representations
and warranties to be true and correct in all respects would result in aggregate
Losses to Purchaser of less than five million dollars ($5,000,000), this
condition shall be deemed satisfied provided that Seller pays to Purchaser, or
adjusts the Purchase Price for, such Losses pursuant to Section 9.8.
(c) Seller shall have performed, in all material respects, all
obligations required to be performed by it under this Agreement on and prior to
the Closing Date.
(d) At least ten (10) days prior to the Closing, Seller shall
have delivered to Purchaser Satisfactory Estoppel Certificates from (i) one
hundred percent (100%) of the Anchors other than (A) Anchors not required to
deliver an estoppel under the terms of their respective Anchor Agreements and
(B) Anchors under the Excluded Anchor Agreements, (ii) Seller with respect to
one hundred percent (100%) of the Excluded Anchor Agreements and (iii) Tenants
occupying at least seventy-eight percent (78%) of the space currently occupied
at the Real Property by Tenants from which Seller is required to request
estoppel certificates in accordance with Section 5.4(b).
(e) Seller shall have delivered to Purchaser the original of
the GMAC Estoppel Certificate.
-29-
31
(f) Purchaser shall have received (or shall be able upon
payment of customary premiums to receive) the Title Policy.
(g) Seller shall have terminated all management agreements
relating to the Property, including any management agreements with FUM.
(h) Seller shall deliver to Purchaser, in a form reasonably
acceptable to Purchaser, a certificate from the lessor under each Alexandria
Ground Lease, pursuant to which such lessor shall certify (1) that the
applicable Alexandria Ground Lease is in full force and effect, (2) as true,
correct and complete, a copy of the applicable Alexandria Ground Lease and that
the documents listed in Schedule 1.4 are all of the documents (or modifications
thereof) relating to such Alexandria Ground Lease and (3) that such lessor has
not provided Seller with written notice of, and has no knowledge of, any default
by Seller under the applicable Alexandria Ground Lease. If Seller is unable to
deliver such a certificate from the lessor under an Alexandria Ground Lease
despite Seller's best efforts to do so in accordance with its obligations under
Section 8.9, then Seller and Purchaser agree that the foregoing condition shall
be deemed satisfied with respect to such Alexandria Ground Lease provided that
Seller delivers to Purchaser a certificate of Seller with respect to the matters
set forth in clauses (1), (2) and (3) above. Any such certificates of Seller
shall survive the Closing for six (6) months and inure to the benefit of
Purchaser, its successors and assigns and any lender providing financing to
Purchaser.
(i) GMAC shall permit the assumption of the GMAC Mortgage by
Purchaser.
6.6 Conditions Precedent to Obligation of Seller. The obligation of
Seller to effect the Closing shall be subject to the fulfillment or written
waiver on or before the date of Closing of all of the following conditions:
(a) Each of the documents or amounts required to be delivered
by Purchaser pursuant to Section 6.3 shall have been delivered as provided
therein.
(b) All of the representations and warranties of Purchaser
contained in this Agreement shall be true and correct in all material respects
as of the date hereof and as of the date of the Closing as though made at and as
of the date of the Closing.
(c) Purchaser shall have paid the Adjusted Purchase Price and
all other amounts required to be paid by Purchaser under this Agreement and
shall
-30-
32
have performed, in all material respects, all of its obligations required to be
performed by it under this Agreement on and prior to the Closing Date.
(d) Seller shall have received the GMAC Release.
6.7 Failure of Conditions.
(a) In the event the conditions in Section 6.5 are not
satisfied (other than the condition in Section 6.5(i) with respect to which the
sole remedy of Purchaser is as set forth in the third sentence of Section
3.2(a)), Seller shall be deemed unable to perform and Purchaser shall have the
option to (i) waive such conditions and close (subject to its rights and
remedies as provided herein) or (ii) terminate this Agreement and have the
remedies set forth in Section 11.1.
(b) In the event the conditions in Section 6.6 are not
satisfied, Purchaser shall be deemed unable to perform and Seller shall have the
option to (i) waive such conditions and close (subject to its rights and
remedies as provided herein) or (ii) terminate this Agreement and have the
remedies set forth in Section 11.2.
(c) In the event that Purchaser or Seller terminates this
Agreement under this Section 6.7, neither party to this Agreement shall have any
further obligation or liability to the other party under this Agreement except
pursuant to Article 11 and except for those provisions which are expressly
stated herein to survive termination of this Agreement.
ARTICLE 7
PRORATIONS BETWEEN PURCHASER AND SELLER;
TRANSFER OF ACCOUNTS
7.1 Prorations.
(a) General. For purposes of this Section 7.1, the "Proration
Date" shall be deemed to be 11:59 p.m. New York time on the day immediately
preceding the Closing Date, so that Purchaser shall be deemed to be in title to
the Real Property and therefore entitled to the income and responsible for the
expenses for the entire day of the Closing Date. Seller agrees to prepare and
deliver to Purchaser at least two (2) Business Days prior to Closing a schedule
of tentative adjustments. Such adjustments, if and to the extent known and/or
estimated as of the Closing, shall be paid by Purchaser to Seller (if the
prorations result in a net
-31-
33
credit to Seller) or by Seller to Purchaser (if the prorations result in a net
credit to Purchaser), by increasing or reducing the cash to be paid by Purchaser
at the Closing. On the date which is six months after the date of Closing, any
such adjustments not determined as of the Closing or later determined to have
been inaccurate, shall be paid by Purchaser to Seller, or by Seller to
Purchaser, as the case may be, in cash.
(b) Percentage Rental. Percentage rentals, to the extent
applicable (including, without limitation, percentage rent provided for in
agreements providing for the payment of base rent and percentage rent provided
for in agreements which do not provide for payment of base rent), payable under
the Leases, the Anchor Agreements and Specialty License Agreements shall be
prorated as of the date (the "Cutoff Date"), which is identical to the
"Proration Date," as follows:
(i) Any percentage rental which is attributable to a
lease year as defined in each Lease, Anchor Agreement or Specialty License
Agreement (each, a "Lease Year") ending before the Cutoff Date shall be retained
by Seller or promptly paid over to Seller if received by Purchaser.
(ii) Any percentage rental which is attributable to a
Lease Year which includes the Cutoff Date and which has been collected by Seller
as of the Closing shall be retained by Seller, subject to adjustment after the
Closing as hereinafter provided.
(iii) The final apportionment with respect to
percentage rent on a Lease, Anchor Agreement or Speciality License Agreement, as
the case may be, shall be computed as follows: Seller shall be entitled to
percentage rent determined by multiplying the total percentage rent for the
Lease Year which includes the Cutoff Date by a fraction, the numerator of which
shall be the total number of days in such Lease Year through and including the
Cutoff Date, and the denominator of which shall be the number of days in such
Lease Year. Purchaser shall be entitled to the remainder of such percentage
rent. Within forty-five (45) days after the end of the applicable Lease Year of
a Lease, Anchor Agreement or Speciality License Agreement, as the case may be,
Purchaser shall send to Seller a report showing the final apportionment for
percentage rent with respect to such Lease or other agreement, computed in the
manner set forth above, which report shall be accompanied by (1) all those
statements of gross sales received from Tenants or Anchors under Anchor
Agreements or parties to Specialty License Agreements with respect to any Lease
Year in which the Cutoff Date occurs, together with all such other documentation
as may be reasonably required or which may be reasonably requested by Seller to
confirm the accuracy of the
-32-
34
apportionment on percentage rent and (2) payment by Purchaser to Seller or
Seller to Purchaser, as the case may be, of such monies, if any, that shall be
due to Seller to Purchaser, as applicable, as shown on such report or otherwise
due under this subparagraph "(b)."
(c) Rentals. Subject to the provisions of Sections 7.1(b),
(d), (e) and (f), Rentals which have been collected shall be prorated as of the
Proration Date. "Rentals" includes fixed monthly rentals, additional rentals ,
percentage rentals, escalation rentals, retroactive rentals, operating cost
pass-throughs (including, without limitation, pass-throughs with respect to real
estate taxes, operating costs and labor costs) and expense reimbursements,
common area maintenance charges, other charges, fees and sums payable as
referred to in subparagraph "(e)" below, utility charges, sprinkler head
rentals, storage rentals, special event proceeds, temporary rents, telephone
receipts, locker rentals, vending machine receipts and other sums and charges
payable by Tenants under the Leases, Anchors under Anchor Agreements or parties
under Specialty License Agreements or from other occupants or users of the Real
Property.
(d) Delinquent Rentals. Subject to the provisions of Section
7.1(b), Delinquent Rentals shall be prorated between Purchaser and Seller as of
the Proration Date but not until they are actually collected by Purchaser.
Rentals are "Delinquent" when payment thereof is due on or before the Proration
Date but has not been made by the Proration Date. Purchaser shall use
Purchaser's good faith efforts to collect any Delinquent Rentals. After the
Closing, Seller shall be permitted to maintain or institute any legal
proceedings against Tenants, Anchors, parties to Specialty License Agreements
and occupants of the Real Property to collect such Delinquent Rentals, provided
that Seller shall not take any action after the Closing against any occupant of
any portion of the Real Property which would affect such occupant's right to
occupy its owned, leased or licensed premises or take any action (other than by
maintaining or instituting such legal proceedings) that would otherwise
adversely affect the Purchaser. Rentals actually collected by Purchaser shall be
applied first to Rentals accruing for the month in which the Closing occurs,
then to Delinquent Rentals accruing for the month prior to the month in which
the Closing occurs, then to Rentals accruing for any period following the month
of the Closing and owing as of the date of collection until such Rentals are
current and then to all other Delinquent Rentals. Purchaser shall be entitled to
retain 2% of all Delinquent Rentals accruing before the month prior to the month
in which the Closing occurs which Purchaser collects after the Closing on behalf
of Seller and pays to Seller. Any amounts due Seller under this Section 7.1(d)
shall be remitted to Seller not later than forty-five (45) days following the
end of the month in which such Delinquent Rentals are collected. After the
Closing, Purchaser shall provide Seller with a monthly accounting of any
Delinquent Rentals and collections thereof
-33-
35
and Seller shall have a reasonable opportunity to inspect Purchaser's books
relating to such Delinquent Rentals and collection thereof.
(e) Operating Cost Pass-Throughs, Etc. Operating cost
pass-throughs (including, without limitation, pass-throughs with respect to real
estate taxes, operating costs and labor costs), expense reimbursements, utility
charges, common area maintenance charges, joint use area charges, HVAC,
advertising and promotional fees, marketing service fees, merchants' association
fees, trash collection charges, additional rentals, rental escalations and other
similar sums or charges payable by the Tenants, Anchors, parties to Speciality
License Agreements or occupants of the Real Property, which accrue as of the
Proration Date but are not then due and payable, shall be prorated as of the
Proration Date; provided, however, no payment thereof shall be made to Seller
unless and until Purchaser actually collects same from such parties. Purchaser
shall use Purchaser's good faith efforts to collect such amounts as are
allocable to Seller. After the Closing, Seller shall be permitted to institute
any legal proceedings against any occupant of the Real Property owing any amount
described in this Section 7.1 (e) to collect such amounts, provided that Seller
shall not take any action after the Closing against any occupant of any portion
of the Real Property which would affect such occupant's right to occupy its
owned, leased or licensed premises. Notwithstanding the above, with respect to
amounts as described in this Section 7.1(e) which are owed by tenants who are no
longer tenants of the Property as of the Closing Date, Seller shall retain all
rights relating thereto. When and if Purchaser actually collects any amount
described in this Section 7.1(e), such amounts shall be applied first to
payment(s) accruing for the month in which the Closing occurs, then to
payment(s) accruing for the month prior to the month in which the Closing
occurs, then to payment(s) accruing for any period following the month of the
Closing and owing as of the date of collection until such payments are current
and then to all other past due payment(s). Purchaser shall be entitled to retain
2% of all amounts described in this Section 7.1(e) which Purchaser collects
after the Closing on behalf of Seller and pays to Seller and which are
attributable to payment(s) accruing before the month prior to the month in which
the Closing occurs. Any amounts due Seller under this Section 7.1(e) shall be
remitted to Seller not later than forty-five (45) days following the end of the
month in which such sums are collected. After the Closing, Purchaser shall
provide Seller with a monthly accounting of amounts described in this Section
7.1(e) accruing before the Closing which remain outstanding and any collections
thereof, and Seller shall have a reasonable opportunity to inspect Purchaser's
books relating to such amounts and collection thereof.
(f) Prepaid Rentals. Except for percentage rent and as
otherwise provided in Section 7.1(b), Rentals already received by Seller
attributable to periods after the Proration Date and the amount of any other
credits due occupants of the
-34-
36
Property, theretofore paid in cash to Seller and applicable to any period or
periods after the Closing Date, shall be credited to Purchaser at the Closing.
(g) Taxes and Assessments.
(i) Any delinquent real estate taxes and any
delinquent installments of assessments (including penalties and charges) on the
Real Property shall be paid at the Closing from funds accruing to Seller. All
non-delinquent real estate taxes on the Real Property for the fiscal tax year in
which the Proration Date occurs shall be estimated based upon the most recently
available real estate tax xxxx and prorated as hereinafter described at the
Closing based upon such estimate. Purchaser and Seller shall re-prorate the real
estate taxes following the Closing upon receipt of the actual real estate tax
xxxx for the applicable fiscal tax year in which the Proration Date occurs.
Purchaser shall be credited with an amount equal to all real estate taxes for
the applicable fiscal tax year which have accrued prior to the Proration Date
and are unpaid as of the Closing. All real estate taxes for fiscal tax years
prior to the fiscal tax year in which the Proration Date occurs shall be the
obligation of Seller. Purchaser shall also be credited with an amount equal to
all real estate taxes already collected or received by Seller from Tenants and
attributable to periods after the Proration Date, so long as such amounts have
not previously been used to pay real estate taxes already due for the period
after the Proration Date. If as of the Closing Date the Real Property or any
part thereof shall be or shall have been affected by an assessment or
assessments which are or may become payable in annual installments of which the
first installment is then a charge or lien, or has been paid, then the
installment for the year in which the Closing Date occurs shall be apportioned
between Seller and Purchaser as of the Closing Date and Purchaser shall be
responsible for any installments due thereafter.
(ii) If there shall be any proceedings challenging or
protesting the assessed valuation or real estate taxes with respect to all or
any portion of the Real Property, which are now pending or pending as of the
Closing with respect to the Property as of the Closing, then, after deducting
the cost of such proceedings including attorneys' fees, all benefits obtained
including, without limitation, any tax refunds attributable to (i) any tax year
ended prior to the date of Closing shall be the property of and shall be paid to
Seller, (ii) any tax year commencing after the date of Closing shall be the
property of and may be retained by Purchaser and (iii) the tax year in which the
Closing occurs shall be the property of and shall be paid to Purchaser, subject
to apportionment between Seller and Purchaser as of the Proration Date. Seller
reserves the right to prosecute any such proceedings for tax years ended prior
to the date the Closing occurs by attorneys selected by Seller and to settle any
such proceedings with the consent of Purchaser, which consent shall not be
unreasonably withheld or delayed as long as
-35-
37
such settlement does not affect the amount of taxes or the assessment or
assessed value in subsequent years and does not otherwise adversely affect the
Purchaser. Purchaser may join in any such proceedings represented by counsel
selected by Purchaser and reasonably approved by Seller. Prior to Closing, but
after the Due Diligence Termination Deadline, at Purchaser's request and at
Purchaser's sole cost and expense, Seller will take reasonable steps to contest,
or preserve the right to contest, the assessed valuation of real estate taxes
with respect to all or any portion of the Real Property. Purchaser reserves the
right to prosecute any such proceedings for a tax year ending after the date the
Closing occurs and to settle any such proceedings without the consent of Seller.
For any tax year ending after the date the Closing occurs, the right to
prosecute, continue and settle such proceedings shall be deemed assigned and
assumed by Purchaser at the Closing. Purchaser shall deliver to Seller or Seller
shall deliver to Purchaser, as the case may be, upon demand, receipted tax bills
and canceled checks used in payment of such taxes and shall execute any and all
consents or other documents and do any act or thing necessary for the collection
of such refund by Seller or Purchaser, as applicable.
(iii) If Purchaser receives any benefits to which
Seller shall be entitled under this Section 7.1 (g) (including, without
limitation, credits against taxes payable after the Closing on the basis of real
estate tax refunds attributable to the period prior to the Closing) or if
Purchaser shall otherwise receive any real estate tax refunds or benefits to the
extent pertaining to the period prior to the date of Closing, Purchaser shall
hold the same in trust for the benefit of Seller and promptly remit the same to
Seller.
(iv) If Seller receives any benefits to which
Purchaser shall be entitled under this Section 7.1 (g) (including, without
limitation, credits against taxes payable for the period commencing on the date
of Closing or real estate tax refunds attributable to the period on or after the
date of Closing) or if Seller shall otherwise receive any real estate tax
refunds or benefits to the extent pertaining to the period commencing on the
date of Closing, Seller shall hold the same in trust for the benefit of
Purchaser and promptly remit the same to Purchaser.
(h) Operating Expenses. All utility service charges for
electricity, heat and air conditioning service, other utilities, common area
maintenance, taxes other than real estate taxes such as rental taxes,
contributions to promotional organizations, other expenses incurred in operating
the Real Property, and any other costs incurred in the ordinary course of
business or the management and operation of the Real Property, shall be prorated
on an accrual basis. All such charges accruing prior to the Proration Date shall
be the obligation of Seller, and Purchaser shall be credited with an amount
equal to all such charges, taxes,
-36-
38
expenses and costs which have accrued prior to the Proration Date. Purchaser
shall be responsible for all such charges accruing after the Proration Date. To
the extent possible, utility prorations will be handled by final readings from
utility providers on the day immediately preceding the Closing.
(i) Security Deposits. Purchaser shall receive possession of,
or be credited with, an amount equal to all refundable security deposits under
all Leases, Anchor Agreements (if applicable) and Specialty License Agreements
and shall indemnify and hold Seller harmless from and against any and all Losses
with respect to all such security deposits with respect to the Leases, Anchor
Agreements and Specialty License Agreements to the extent Purchaser receives
possession of, or is credited with, such security deposits.
(j) Contracts. Amounts payable under the Contracts (other
than those amounts required to be paid directly by any tenant under its Lease)
shall be prorated as of the Proration Date on an accrual basis. All amounts
payable under the Contracts accruing prior to the Proration Date shall be the
obligation of Seller, and Purchaser shall be credited with an amount equal to
all amounts payable under the Contracts which have accrued prior to the
Proration Date. Purchaser shall be responsible for all amounts payable under the
Contracts accruing after the Proration Date.
(k) Fees for Transferrable Licenses and Permits. Fees for
transferrable licenses and permits with respect to the Real Property shall be
prorated as of the Proration Date.
(l) Prepaid Expenses. Seller shall be credited with an amount
equal to all costs, expenses, charges and fees prepaid by Seller under any
Contracts that are assumed by Purchaser and attributable to the period after the
Closing Date.
(m) Marketing Fund Balance. Purchaser shall receive possession
of, or be credited with, an amount equal to the Marketing Fund Balance for each
Mall as of the Closing Date. Seller shall fund its obligations, if any, to such
prorated Marketing Fund Balance prior to Closing and Purchaser shall assume
Seller's obligations with respect to such Marketing Fund Balance from and after
Closing.
(n) GMAC Principal, Interest and Fees.
(i) If Purchaser shall assume the GMAC Loan
Documents, then:
-37-
39
(A) Purchaser shall receive a credit against
the Purchase Price in the amount of the outstanding principal balance of the
GMAC Mortgage as of the Closing Date.
(B) Interest on the GMAC Mortgage shall be
prorated on an accrual basis. All interest payable under the GMAC Mortgage
accruing and not paid prior to the Proration Date shall be the obligation of
Seller, and Purchaser shall be credited with an amount equal to such accrued and
unpaid interest. Purchaser shall be responsible for all interest payable under
the GMAC Mortgage and accruing after the Proration Date.
(C) Purchaser shall pay to Seller at Closing
the monies held in the following accounts as defined in the Lockbox Agreement
dated as of September 30,1996 by and between Seller, GMAC and Xxxxxx Trust and
Savings Bank: the Restricted Subaccounts, the Main Restricted Account, the
Operating Reserve Account, the Ground Rent Reserve Account, the Taxes and
Insurance Reserve Account, the Debt Service Reserve Account, the Tenant
Improvements Reserve Account, the Lending Commission Reserve Account, the Tenant
Deposit Reserve Account, the Replacement Reserve Account, the Outside Escrow
Account and the Completion and Repair Reserve Account and any other reserves,
escrow deposits or accruals made with, or held by, GMAC, in each case to the
extent such monies will belong to Purchaser (subject to the terms of the GMAC
Loan Documents) as of the Closing (collectively, the "GMAC Reserves
Reimbursement").
(D) Purchaser shall pay the GMAC Charges at
Closing. Purchaser shall be solely responsible for the GMAC Charges and shall
indemnify and hold Seller harmless from and against such GMAC Charges. Seller
shall pay the GMAC Assumption Fees at Closing. Seller shall be solely
responsible for the GMAC Assumption Fees and shall indemnify and hold Purchaser
harmless from and against such GMAC Assumption Fees.
(ii) Purchaser shall pay the GMAC Park Plaza Release
Price (if any) and the GMAC Park Plaza Prepayment Penalty (if any) at the
Closing and Seller shall grant to Purchaser a credit against the Purchase Price
in the aggregate amount thereof. Notwithstanding anything to the contrary
contained herein, Seller shall have the sole right to negotiate with GMAC with
respect to the amount of GMAC Park Plaza Release Price and the GMAC Park Plaza
Prepayment Penalty and Purchaser shall not participate in the negotiations
limited exclusively to such matters.
-38-
40
(o) Tenant Costs. Amounts in the Tenant Costs Escrow Account
shall be paid or credited as described in Section 8.1(e).
7.2 The provisions of Section 7.1 shall survive the Closing for six (6)
months; provided that the provisions of Section 7.1(b) and (e) shall survive the
Closing until July 1, 2000.
ARTICLE 8
ADDITIONAL AGREEMENTS OF SELLER AND PURCHASER
8.1 Operation and Management Prior to Closing.
(a) Prior to Closing and except as otherwise contemplated or
permitted by this Agreement, Seller agrees to operate, manage, maintain, repair
and lease the Property in a prudent manner, in the ordinary course of business,
on an arm's-length basis and consistent with Seller's normal and customary
practice prior to the date hereof, provided, however, such obligation shall not
include extraordinary capital expenditures.
(b) Prior to Closing, Seller agrees (i) to maintain customary
insurance on the Property in accordance with Seller's normal and customary
practice prior to the date hereof, (ii) not to enter into or agree to enter into
any new Anchor Agreement, Lease or Specialty License Agreement, or amend,
extend, renew, modify or, except in the case of a material default by the
applicable Anchor, Tenant or occupant thereunder, terminate any existing Anchor
Agreement, Lease or Specialty License Agreement, without the written consent of
the Purchaser, which consent shall not be unreasonably withheld; provided that
Purchaser's consent shall not be required for modifications of terms of Leases
and Specialty License Agreements that do not relate to rental or other payment
terms or to the expiration, cancellation or termination of such Lease or
Specialty License Agreement and that are otherwise not material, (iii) not to
amend, modify or terminate the Alexandria Ground Leases or enter into any new
ground lease without the written consent of Purchaser, (iv) not to enter into
any new Contracts which would remain in effect as of the Closing without the
written consent of the Purchaser except for Contracts which are terminable
without cause upon thirty (30) days' notice without penalty, and (v) not to
dispose of any Real Property, dispose of or remove Personalty from the Real
Property with a value of $50,000 or more in the aggregate unless such Personalty
is replaced with similar Personalty of comparable quality, or dispose of or
assign any Intangibles. Any consent of Purchaser required under this Section
8.1(b), (x) may be given or withheld by Purchaser in its sole discretion from
and
-39-
41
after the Due Diligence Termination Deadline and (y) solely in the case of
amendments or modifications to Leases and Specialty License Agreements, shall be
deemed given if Purchaser does not respond to Seller's request for consent
within five (5) Business Days after such request is delivered by Seller to
Purchaser.
(c) From and after the Due Diligence Termination Deadline and
prior to the Closing, Seller shall, at Purchaser's request and direction, enter
into leases, licenses or other occupancy agreements with the Gap, Old Navy and
such other tenants, licensees or other parties in occupancy that are reasonably
acceptable to Seller, in each case on commercially reasonable terms, conditions
and lease documents as determined by Purchaser; provided that in the case of
tenants other than Gap or Old Navy such terms, conditions and lease documents
shall also be reasonably acceptable to Seller. In the event that Purchaser
presents Seller with a lease, license or other occupancy agreement that
satisfies the provisions of this Section 8.1(c) and Seller does not execute such
lease, license or other occupancy agreement within five (5) Business Days after
Purchaser presents Seller with the execution copy of such lease, license or
occupancy agreement, then Seller hereby grants Purchaser the authority to enter
into, and hereby irrevocably constitutes and appoints Purchaser as its true and
lawful attorney, in the name, place and stead of Seller, to execute,
acknowledge, swear to, deliver, record and file, such lease, license or other
occupancy agreement in Seller's name and on Seller's behalf; provided that this
power shall not be invoked by Purchaser nor shall Seller be obligated to execute
any lease, license or occupancy agreement unless Purchaser has deposited with
Escrowee all Tenant Costs for such lease, license or occupancy agreement in
accordance with Section 8.1(d). The power of attorney granted by Seller to
Purchaser pursuant to this Section 8.1(c) is coupled with an interest and shall
be irrevocable and shall survive and not be affected by the subsequent
bankruptcy or dissolution of Seller but shall not survive the termination of
this Agreement or the Closing.
(d) From and after the Due Diligence Termination Deadline and
prior to the Closing, in connection with Seller (i) placing tenants, licensees
or other parties in occupancy pursuant to leases, licenses or other occupancy
agreements (in each case subject to first obtaining Purchaser's consent in
accordance with Section 8.2(b)) and (ii) entering into new leases, licenses or
other occupancy agreements at Purchaser's request in accordance with Section
8.2(c) (any leases, licenses or other occupancy agreements entered into with
Purchaser's approval pursuant to clause (i) or (ii) being referred to herein as
an "Approved Lease"), Purchaser shall, contemporaneous with the execution of
such Approved Lease, deposit in a segregated interest-bearing escrow account
with Escrowee (the "Tenant Costs Escrow Account") all of the following
out-of-pocket costs (collectively, "Tenant Costs") imposed on the landlord
pursuant to such Approved Lease: tenant
-40-
42
inducements, rent concessions, moving costs, third party costs, attorneys' fees,
leasing commissions, tenant improvement costs, construction allowances and lease
buy-outs. Prior to Closing, on three (3) Business Days prior written notice to
Purchaser, Seller may access the amounts in the Tenant Costs Escrow Account to
pay such Tenant Costs that are then due. Seller shall provide an accounting to
Purchaser of all amounts so withdrawn. In the event that Seller notifies
Purchaser of any shortfall with respect to Tenant Costs for an Approved Lease
and the reasons therefor, Purchaser shall promptly deposit the same into the
Tenant Costs Escrow Account for use by Seller in accordance with this Section
8.1(d). Purchaser shall be entitled to approve and monitor the contractors and
architects selected to perform tenant work under any Approved Lease and the
budget for such work. Any such approval shall be deemed given if Purchaser does
not respond to Seller's request for approval of the same within five (5)
Business Days after such request is delivered by Seller to Purchaser.
(e) All amounts in the Tenant Costs Escrow Account not
previously used to pay Tenant Costs in accordance with Section 8.1(d) shall be
paid (i) to Purchaser at and upon the Closing, (ii) to Seller immediately upon a
termination by Seller of this Agreement in accordance with the provisions of
Section 11.2, or (iii) to Purchaser immediately upon any other termination of
this Agreement (by Seller or Purchaser or otherwise) in accordance with the
provisions of this Agreement and, in such case, Seller shall promptly pay to
Purchaser any amounts previously used to pay Tenant Costs in accordance with
Section 8.1(d). All interest and income earned on the Tenant Costs Escrow
Account shall be paid to Purchaser; provided that such interest and income shall
be paid to Seller if the amounts in the Tenant Costs Escrow Account are required
to be paid to Seller in accordance with clause (ii) above; provided further that
in the event the amounts in the Tenant Costs Escrow Account are paid to
Purchaser in accordance with clause (iii) above, Seller shall promptly pay to
Purchaser interest on any amounts previously used to pay Tenant Costs in
accordance with Section 8.1(d) (at the rate paid on funds in the Tenant Costs
Escrow Account) from the date such amounts were withdrawn from the Tenant Costs
Escrow Account to pay such Tenant Costs.
(f) The obligations of Seller under Section 8.1(b)(ii), (iii),
(iv) and (v) shall survive the Closing for a period of six (6) months to the
extent that Purchaser is unable to ascertain as of Closing whether such
obligations have been performed by Seller. The obligations of Seller under
Section 8.1(e) shall survive the termination of this Agreement until all amounts
payable pursuant to Section 8.1(e) are paid in full.
8.2 Purchaser's Assumption of Obligations. Purchaser shall assume and
perform all of Seller's obligations, if any, arising from and after the Closing
under the
-41-
43
terms and conditions of all Leases, Anchor Agreements, Specialty License
Agreements and Contracts assigned at Closing under the terms of this Agreement.
The provisions of this Section 8.2 shall survive the Closing hereunder.
8.3 Confidentiality; No Recording.
(a) Purchaser agrees that (i) all Evaluation Material or any
other information or documents concerning the Property and furnished to
Purchaser by Seller or FUR (collectively, "Confidential Information") will be
used solely for the purposes of evaluating its investment and shall be kept
confidential and (ii) it will not disclose any Confidential Information to any
persons other than Purchaser's Agents. Purchaser agrees to cause Purchaser's
Agents to keep confidential all Confidential Information to the same extent
Purchaser is required to do so under this Section 8.3.
(b) Purchaser agrees that, if the transactions contemplated by
this Agreement are not consummated, copies of all Confidential Information
furnished to Purchaser shall be returned to Seller or destroyed by Purchaser.
(c) For purposes of this Section 8.3, the term Confidential
Information shall not include information which (i) is or becomes available to
the public other than as a result of a disclosure by Purchaser or Purchaser's
Agents, (ii) presently is or hereinafter becomes available to Purchaser on a
non-confidential basis from a source other than Seller, its agents or advisors,
or (iii) is sold, conveyed, transferred or assigned to Purchaser in connection
with the consummation of the transactions contemplated by this Agreement.
(d) Under no circumstances whatsoever shall Purchaser record
this Agreement or any memorandum or notice of this Agreement in any county or
state.
(e) The provisions of this Section 8.3 shall survive the
termination of this Agreement but shall terminate when the Closing occurs.
8.4 GMAC Loan Documents. Prior to Closing, Seller agrees (a) except as
contemplated by Section 3.4, not to amend, modify, supplement or terminate the
GMAC Loan Documents, (b) to perform in a timely manner all of its monetary and
other material obligations under the GMAC Loan Documents and (c) to promptly
provide Purchaser with any written notices of default or other correspondence
received from GMAC relating to the obligations of Seller under the GMAC Loan
Documents. Furthermore, Seller will promptly notify Purchaser upon Seller
becoming aware of any event or circumstance that, based on the provisions of the
GMAC Loan Documents, Seller believes would constitute a default (or would
-42-
44
become a default with the passage of time or the giving of notice or both) under
the GMAC Loan Documents.
8.5 Delivery and Access. On the Effective Date, Seller shall provide
the Purchaser and Purchaser's Agents access to all lease files, tenant
correspondence files and other files and records relating the Property. To the
extent not in Seller's Files or, with respect to litigation files relating to
Xxxx Interests Incorporated/Best Products Co., Inc. or X.X. Xxxxxx Company d/b/a
Service Merchandise, contained in the offices of Seller's attorneys, not later
than five (5) Business Days before the Due Diligence Termination Deadline,
Seller shall deliver copies of all pleadings and papers relating to litigation
pertaining to Leases, Anchor Agreements or Speciality License Agreements
covering the Tenant Litigation Space. Prior to Closing, Seller shall (a)
promptly provide Purchaser with copies of monthly operating reports with respect
to the Property and all operating statements, rent rolls, receivable aging
reports, leasing reports and other similar periodic reports prepared by or
delivered to Seller with respect to the Property (in each case without
representation or warranty by Seller) and (b) to the extent permitted by the
applicable Anchor Agreements, Leases and Specialty License Agreements, provide
Purchaser with access to the Property and operating personnel of Seller and FUR
during normal business hours and upon reasonable advance notice. Prior to
Closing, Seller shall provide Purchaser with copies of all Contracts entered
into by Seller affecting the Property after the Effective Date.
8.6 Communication with Authorities. Purchaser shall not have any
communication with governmental authorities regarding the Property (other than
for the purpose of obtaining customary zoning letters) unless legally required
to do so.
8.7 Public Disclosure.
(a) Purchaser shall not issue any press release concerning the
existence or execution of this Agreement or the terms thereof until Seller has
issued a press release (or similar public announcement or communication)
regarding the same; provided that Seller shall not issue its press release (or
similar public announcement or communication) until such press release (or
similar public announcement or communication) has been approved by Purchaser,
which approval shall not be unreasonably withheld or delayed.
(b) Subject to Purchaser's obligations under Section 8.7(a),
Purchaser shall not issue any press release (or similar public announcement or
communication) concerning the existence or execution of this Agreement or the
terms thereof until such press release (or similar public announcement or
-43-
45
communication) has been approved by Seller, which approval shall not be
unreasonably withheld or delayed.
(c) Any approval required under this Section 8.7 shall be
deemed given if the party from which approval is required does not respond to
the other party's request for such approval within one (1) Business Day after
receipt of such request.
(d) For purposes of this Section 8.7, Forms 8-K, proxy
statements and other filings with the Securities and Exchange Commission shall
be deemed not to be a press release (or similar public announcement or
communication).
8.8 Exclusivity; Shareholder Approval.
(a) From and after the date on which Purchaser makes the
Additional Deposit, no authorized officer, trustee, manager or director of
Seller or FUR or any affiliate thereof, or any of their respective authorized
agents, shall directly or indirectly, solicit, pursue, entertain, negotiate,
enter into or attempt to engage in any discussions with, or provide any
Confidential Information to, any person or entity other than Purchaser or
Purchaser's Agents with a view toward the sale of all or any portion of the Real
Property by Seller. Notwithstanding the foregoing, Seller and FUR may respond to
and pursue (including by providing Confidential Information subject to a
customary confidentiality agreement no less favorable to Seller than the
provisions of Section 8.3; provided that a copy of such agreement is promptly
delivered to Purchaser) a bona fide proposal, which is neither solicited nor
encouraged by an authorized officer, trustee, manager or director of Seller or
FUR or any affiliate thereof, or any of their respective authorized agents, to
consummate the sale, directly or indirectly, of all of the Real Property
collectively (but not less than all of the Real Property) to any person or
entity other than Purchaser if the Board of Trustees of FUR or an appropriate
committee thereof has determined that (a) such alternate proposal is more
favorable to FUR's shareholders from a financial point of view than the
transactions contemplated by this Agreement (taking into account the fee payable
to Purchaser pursuant to Section 14.2(b)), (b) such alternative proposal is
reasonably capable of being consummated and (c) based on the advice of outside
legal counsel, it has a fiduciary duty under applicable law or its
organizational documents to the shareholders of FUR to respond to and pursue
such alternative proposal; provided that FUR shall promptly notify Purchaser of
any such alternative proposal prior to responding thereto.
(b) Each of Seller and FUR shall use its best efforts to clear
the definitive proxy statement described in Section 14.2 with the Securities and
-44-
46
Exchange Commission as promptly as practicable and, in any event, before the
date that would allow sufficient time to declare a record date, mail proxy
statements, solicit proxies and conduct a duly called meeting of FUR's
shareholders in accordance with all applicable laws, rules and regulations and
FUR's organizational documents by no later than the Shareholder Approval
Deadline.
(c) Purchaser's sole remedy in the event of the breach of this
Section 8.8 is as set forth in Section 14.2(b).
8.9 Alexandria Ground Leases. Seller agrees to use its best efforts
(without being required to expend any sums) to obtain and deliver to Purchaser
the certificates from the lessors under the Alexandria Ground Leases referred to
in Section 6.5(h).
ARTICLE 9
REPRESENTATIONS AND WARRANTIES AND INDEMNIFICATION
9.1 General Disclaimer. Except as specifically set forth in Section 9.2
below, the sale of the Property hereunder is and will be made on an "as is"
basis, without representations and warranties of any kind or nature, express,
implied or otherwise, including, but not limited to, any representation or
warranty concerning title to the Property, the physical condition of the
Property (including, but not limited to, the condition of the soil or the any
improvements), the environmental condition of the Property (including, but not
limited to, the presence or absence of hazardous substances on or respecting the
Property), the compliance of the Property with applicable laws and regulations
(including, but not limited to, zoning and building codes or the status of
development or use rights respecting the Property), the financial condition of
the Property or any other representation or warranty respecting any income,
expenses, charges, liens or encumbrances, rights or claims on, affecting or
pertaining to the Property or any part thereof. Purchaser acknowledges that
Purchaser has examined, reviewed and inspected all matters which in Purchaser's
judgment bear upon the Property and its value and suitability for Purchaser's
purposes. Except as to matters specifically set forth in Section 9.2 below,
Purchaser will acquire the Property solely on the basis of its own physical and
financial examinations, reviews and inspections and the title insurance
protection afforded by the Title Policy.
9.2 Seller's Representations and Warranties. Seller makes the following
representations and warranties, each of which is true and correct as of the date
hereof and shall be true and correct as of the Closing Date (provided that
-45-
47
representations and warranties which are stated to be made as of the Effective
Date need be true and correct only as of the Effective Date):
(a) Authority; Binding on Seller; Enforceability. Seller is
duly organized, validly existing, in good standing in the State of Delaware and
is duly qualified to do business in all states in which the Real Property is
located. Subject to and based upon the assumption that the Seller Ratifications
shall be obtained as hereinafter provided, (i) Seller has the full right and
authority to enter into this Agreement, consummate or cause to be consummated
all transactions contemplated hereby and make or cause to be made transfers and
assignments contemplated herein, and the persons signing this Agreement on
behalf of Seller are authorized to do so and (ii) this Agreement and all of the
documents to be delivered by Seller at the Closing have been authorized and
properly executed and will constitute the valid and binding obligations of
Seller, enforceable against Seller in accordance with its terms.
(b) Conflict with Existing Laws; Consents. The execution and
delivery of this Agreement and all related documents and the performance of its
obligations hereunder and thereunder by Seller do not conflict with any
provision of any law or regulation to which Seller is subject, or conflict with
or result in a breach of or constitute a default under any of the terms,
conditions or provisions of any agreement or instrument to which Seller is a
party or by which Seller is bound or any order or decree applicable to Seller,
or result in the creation or imposition of any lien on any of its assets or
property which would materially adversely affect the ability of Seller to
perform its obligations under this Agreement. Seller has obtained all consents,
approvals, authorizations or orders of any court, governmental agency or body
and all third parties, if any, required for the execution and delivery of this
Agreement. Subject to and based upon the assumption that the GMAC Consent, the
Rating Agency Consent and the Seller Ratification shall be obtained as provided
herein, Seller has obtained all consents, approvals, authorizations or orders of
any court, governmental agency or body and all third parties, if any, required
for the performance by Seller of this Agreement and the consummation of the
transactions contemplated hereby.
(c) Bankruptcy or Debt of Seller. Seller has not filed any
petition seeking or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief relating to Seller or
any of its property under any law relating to bankruptcy or insolvency, nor, to
the best of Seller's knowledge, has any such petition been filed against Seller.
No general assignment of Seller's property has been made for the benefit of
creditors, and, to Seller's knowledge, no receiver, master, liquidator, or
trustee has been appointed for Seller or any material portion of its property.
Seller is not insolvent and the
-46-
48
consummation of the transactions contemplated by this Agreement shall not render
Seller insolvent.
(d) Anchor Agreements, Leases and Specialty License
Agreements. Seller will, upon execution hereof, immediately deliver to Purchaser
or make available to Purchaser in Seller's lease files at the offices of Seller
or FUR in Cleveland and Dallas, true, correct and complete copies of all Anchor
Agreements, Leases and Specialty License Agreements (including all amendments,
extensions, modifications and renewals thereof); such Anchor Agreements, Leases
and Specialty License Agreements included in such lease files are true, correct
and complete copies of any and all leases, reciprocal easement agreements,
subleases (to which Seller or its predecessors in interest are a party),
licenses or other occupancy agreements affecting any portion of any Real
Property; and (other than as permitted by the last sentence of Section 9.4)
there are no amendments, extensions, modifications or renewals of any such
leases, reciprocal easement agreements, licenses or other occupancy agreements
which are not included in such lease files.
(i) Except as set forth in Schedule 9.2(d)(i) and
except as disclosed in Seller's
Files, Seller has not received written notice of any insolvency or bankruptcy
proceeding involving any Anchor, Tenant or occupant under a Specialty License
Agreement;
(ii) Except as disclosed in Seller's lease files at
the offices of Seller or FUR in Cleveland and Dallas, no brokerage commission or
other compensation or other Tenant Costs shall become due or payable to any
person by Purchaser with respect to any Anchor Agreement, Lease or Specialty
License Agreements executed prior to the date hereof;
(iii) Except as disclosed in Seller's Files, no
Anchor, Tenant or occupant under a Specialty License Agreement has paid fixed
rents under its Anchor Agreement, Lease or Specialty License Agreement, as the
case may be, more than 30 days in advance;
(iv) Except as disclosed in Seller's Files, Seller
has not delivered to an Anchor, Tenant or occupant under a Specialty License
Agreement written notice of a default under its Anchor Agreement, Lease or
Specialty License Agreement, as the case may be, which remains uncured; and
(v) Except as disclosed in Seller's Files, as of the
Effective Date, Seller has not received any written notice from any Anchor,
Tenant or occupant under a Specialty License Agreement that Seller has not
performed any
-47-
49
of its obligations under the applicable Anchor Agreement, Lease or Specialty
License Agreement, as the case may be, that are required to be performed prior
to the date hereof and there are no pending claims asserted in writing against
Seller by an Anchor, Tenant or occupant under a Specialty License Agreement for
offsets or abatements against rent or any other monetary amount.
(e) Condemnation. As of the Effective Date and except as set
forth in Seller's Files, Seller has not received written notice of any pending
or threatened condemnation proceeding or similar proceeding affecting any Real
Property except as set forth on Schedule 9.2(e).
(f) Litigation. Except (1) as set forth on Schedule 9.2(f),
(2) as set forth in Seller's Files, (3) for matters fully covered by insurance
and (4) for proceedings with Anchors, Tenants or occupants under Specialty
License Agreements in which Seller is the plaintiff and no claim or counterclaim
has been asserted against Seller, Seller has not received (i) written notice
(including a summons or complaint) of any action, suit litigation, proceeding or
governmental investigation, which remains pending, or any order, injunction or
decree which remains outstanding affecting any portion of the Property or (ii)
written notice from an Anchor, Tenant or occupant under a Specialty License
Agreement threatening suit by reason of Seller's default under an Anchor
Agreement, Lease or Specialty License Agreement, as the case may be, which
default has not been cured, in the case of both clauses (i) and (ii), which
individually or in the aggregate could, if adversely determined, result in a
judgment against the Purchaser or any Property in an amount of $500,000 or more
or otherwise have a material adverse effect on Purchaser or the use, operation
or value of or access to any Real Property.
(g) Compliance with Laws; Licenses and Permits. Except as set
forth on Schedule 9.2(g) and except as set forth in Seller's Files, Seller has
not received written notice (the subject of which has not been cured) from any
governmental authority or any party entitled to enforce a covenant, condition
and restriction affecting any Real Property or any other person to the effect
that (i) any federal, state or local law, ordinance, rule, order or regulation
has been violated by the maintenance, operation, occupancy or use of such Real
Property which violation would materially adversely affect the current
operation, current occupancy or current use of such Real Property, (ii) any
building, or other federal, state or municipal law, ordinance, covenant,
condition and restriction is or has been violated by the maintenance, operation,
occupancy or use of such Real Property which violation would materially
adversely affect the current operation, current occupancy or current use of such
Real Property or (iii) any licenses permits, inspections, authorizations,
certifications and approvals required by any governmental authorities having
jurisdiction over the operation of the Real Property, in its present manner,
have not
-48-
50
been performed or issued and paid for and are not in full force and effect, in
each case, without which the maintenance, operation, occupancy or use of such
Real Property would be materially adversely affected; provided that, if the
representations and warranties of Seller in this Section 9.2(g) are true and
correct as of the Effective Date, then such representations and warranties shall
also be deemed true and correct as of the Closing Date, other than with respect
to any written notices described in this Section 9.2(g) the subject matter of
which (x) relates to (1) a change in any federal, state or local law, ordinance,
rule, order or regulation after the Due Diligence Termination Deadline or (2)
events, circumstances or conditions which first occurred or arose after the Due
Diligence Termination Deadline and (y) does not relate to (1) the taking of any
action by Seller required by the terms of any Approved Lease or (2) matters for
which an Anchor, Tenant or occupant under a Specialty License Agreement is
solely responsible.
(h) Contracts. As of the Effective Date, Seller's Files
include a true and complete copy of all Contracts to which Seller or its agent
is a party affecting the Property in effect on the date hereof (including all
amendments and modifications thereof).
(i) Security Deposits. Except as set forth in Seller's Files,
Schedule 9.2(i) sets forth all security deposits held by or on behalf of Seller
under Anchor Agreements, Leases and Specialty License Agreements. Seller and its
agents have held all security deposits in accordance with law and the terms of
the applicable Anchor Agreements, Leases and Specialty License Agreements.
(j) Rights of Offer and Refusal. Except as set forth in
Seller's Files and other than any right of GMAC under the GMAC Loan Documents,
Seller has not granted to any person any right or option to acquire any Property
or portion thereof or any interest relating thereto, or a right of first offer
or right of first refusal to do so, or a right to receive any profit
participation or other interest with respect to the Property or any portion
thereof (whether exercisable now or upon any subsequent resale of any Property
or any portion thereof), which in any such case would be binding on Purchaser.
(k) Employees. There are no employment, union or other similar
agreements relating to Seller's employees at the Property that will be binding
on Purchaser or the Property after Closing.
(l) Environmental Matters. Except as disclosed in the
environmental reports listed on Schedule 9.2(l) and heretofore delivered to
Purchaser (which such reports represent all of the environmental reports in the
possession or under the control of Seller or its agents) or in the environmental
-49-
51
reports prepared for Purchaser before the Due Diligence Termination Deadline in
connection with the transactions contemplated hereby and except as otherwise
disclosed on Schedule 9.2(l), (i) Seller has not received any written notice,
demand, letter, claim or request for information (the subject of which has not
been cured) regarding the presence of Hazardous Substances or liability under
any Environmental Law with respect to such Property and (ii) Seller has not
received any written notice (the subject of which has not been fully cured) that
any Property is currently subject to any orders, decrees, injunctions or any
other proceedings or requirements imposed by any governmental authority or third
party pursuant to any Environmental Law, in the case of both clauses (i) and
(ii), the subject matter of which could result in Losses to Purchaser in an
amount equal to (x) $100,000 or more with respect to any Mall or (y) $200,000 or
more in the aggregate with respect to all of the Malls collectively. (By way of
example, if this representation is breached because Seller has received
undisclosed written notices of Hazardous Substances at three Malls and the cost
of remediation for each Mall would be $150,000, then the amount of Losses for
the purposes of Section 9.8 would be, in such example, $250,000 ($450,000 -
$200,000).)
9.3 AS IS. Without limiting Seller's representations and warranties
contained in this Article 9:
(a) Except as may otherwise be expressly set forth in this
Agreement, Purchaser is expressly purchasing the Property in its existing
condition "AS IS, WHERE IS, AND WITH ALL FAULTS" with respect to all facts,
circumstances, conditions and defects. Seller has no obligation to determine or
correct any such facts, circumstances, conditions or defects or to compensate
Purchaser for same. Seller has specifically bargained for the assumption by
Purchaser of all responsibility to investigate the Property, laws and
regulations, rights, facts, Leases, Contracts, Specialty License Agreements and
Anchor Agreements and of all risk of adverse conditions and has structured the
Purchase Price and other terms of this Agreement in consideration thereof.
Purchaser will undertake or has taken all investigations and review of the
Property, laws and regulations, rights, facts, Leases, Contracts, Specialty
License Agreements and Anchor Agreements as Purchaser deems necessary or
appropriate under the circumstances as to the status of the Property and based
upon same, Purchaser is and will be relying strictly and solely upon such
inspections and examinations, the warranties and representations of Seller
specifically set forth in this Agreement, and the advice and counsel of its own
consultants, agents, legal counsel and officers and Purchaser is and will be
fully satisfied that the Purchase Price is fair and adequate consideration for
the Property, and by reason of all the foregoing, Purchaser assumes the full
risk of any loss or damage occasioned by any fact,
-50-
52
circumstance, condition or defect pertaining to the Property, except as
expressly set forth to the contrary in this Agreement.
(b) Except for those representations and warranties of Seller
set forth herein, Seller hereby disclaims all warranties of any kind or nature
whatsoever (including warranties of habitability and fitness for particular
purposes), whether expressed or implied, including, without limitation,
warranties with respect to the Property. Purchaser acknowledges that Purchaser
is not relying upon any representation of any kind or nature made by Seller, or
any of its employees or agents with respect to the Property other than those
representations and warranties set forth herein, and that, in fact, no such
representations or warranties were made except as expressly set forth in this
Agreement.
(c) Seller makes no representation or warranty with respect to
the presence of Hazardous Materials on, above, or beneath the Real Property (or
any parcel in proximity thereto) or in any water on or under the Real Property.
Purchaser's closing hereunder shall be deemed to constitute an express waiver of
any right on the part of Purchaser to cause Seller to be joined in any action
brought against Purchaser under any Environmental Laws or to contribute to the
cost of any remediation or clean-up of any environmental hazard or environmental
condition at the Real Property. The term "Hazardous Materials" shall mean (i)
those substances included within the definitions of any one or more of the terms
"hazardous materials," "hazardous wastes," "hazardous substances," "industrial
wastes," and "toxic pollutants," as such terms are defined under the
Environmental Laws, or any of them, (ii) petroleum and petroleum products,
including, without limitation, crude oil and any fractions thereof, (iii)
natural gas, synthetic gas and any mixtures thereof, (iv) asbestos and or any
material which contains any hydrated mineral silicate, including, without
limitation, chrysolite, amosite, crocidolite, tremolite, anthophyllite and/or
actinolite, whether friable or non-friable, (v) polychlorinated biphenyl
("PCBs") or PCB-containing materials or fluids, (vi) radon, (vii) any other
hazardous or radioactive substance, material, pollutant, contaminant or waste,
and (viii) any other substance with respect to which any Environmental Law or
governmental authority requires environmental investigation, monitoring or
remediation. The term "Environmental Laws" shall mean all federal, state and
local laws, statutes, ordinances and regulations, now or hereafter in effect, in
each case as amended or supplemented from time to time, including, without
limitation, all applicable judicial or administrative orders, applicable consent
decrees and binding judgments relating to the regulation and protection of human
health, safety, the environmental and natural resources (including, without
limitation, ambient air, surface, water, groundwater, wetlands, land surface or
subsurface strata, wildlife, aquatic species and vegetation), including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42
-51-
53
U.S.C. Sections 9601, et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. Sections 1801, et seq.), the Federal Insecticide, Fungicide,
and Rodenticide Act, as amended (7 U.S.C. Sections 136, et seq.), the Resource
Conservation and Recovery Act, as amended (42 U.S. Sections 6901, et seq.)
("RCRA"), and Toxic Substance Control Act, as amended (42 U.S.C. Sections 7401,
et seq.), The Clean Air Act, as amended (42 U.S.C. Sections 7401, et seq.), the
Federal Water Pollution Control Act, as amended (33 U.S.C. Sections 1251, et
seq.), the Occupational Safety and Health Act, as amended (29 U.S.C. Sections
651, et seq.), the Safe Drinking Water Act, as amended (42 U.S.C. Sections 300f,
et seq.), any state or local environmental law or counterpart or equivalent of
any of the foregoing, and any Federal, state or local transfer ownership
notification or approval statutes.
9.4 Modification of Seller's Representations and Warranties. Seller may
replace or create new schedules to the representations and warranties in Section
9.2 to reflect any additional information by delivering to Purchaser replacement
schedules or new schedules, as the case may be, to such representations and
warranties at least three (3) Business Days prior to the Due Diligence
Termination Deadline. The representations and warranties of Seller shall be
deemed to be modified by such replacement or new schedules delivered to
Purchaser and shall constitute the representations and warranties of Seller for
all purposes under this Agreement. In addition, the representations in clauses
(i), (iii) and (iv) of Section 9.2(d) and Section 9.2(i) shall be deemed to be
modified as of the Closing Date by any written disclosure schedules delivered by
Seller to Purchaser at least three (3) Business Days prior to Closing. Any
Approved Leases shall be deemed permissible exceptions to the representations
and warranties set forth in the first sentence of Section 9.2(d) and Section
9.2(j).
9.5 Purchaser's Representations and Warranties. Purchaser makes the
following representations and warranties, each of which is true and correct as
of the date hereof and as of the Closing Date:
(a) Authority; Binding on Purchaser; Enforceability. Purchaser
is duly organized, validly existing, in good standing in the State of Delaware.
Purchaser has the full right and authority to enter into this Agreement,
consummate or cause to be consummated all transactions contemplated hereby and
make or cause to be made transfers and assignments contemplated herein, and the
persons signing this Agreement on behalf of Purchaser are authorized to do so
and (ii) this Agreement and all of the documents to be delivered by Purchaser at
the Closing have been authorized and properly executed and will constitute the
valid and binding obligations of Purchaser, enforceable against Purchaser in
accordance with its terms.
-52-
54
(b) Conflict with Existing Laws; Consents. The execution and
delivery of this Agreement and all related documents and the performance of its
obligations hereunder and thereunder by Purchaser do not conflict with any
provision of any law or regulation to which Purchaser is subject, or conflict
with or result in a breach of or constitute a default under any of the terms,
conditions or provisions of any agreement or instrument to which Purchaser is a
party or by which Purchaser is bound or any order or decree applicable to
Purchaser, or result in the creation or imposition of any lien on any of its
assets or property which would materially adversely affect the ability of
Purchaser to perform its obligations under this Agreement. Purchaser has
obtained all consents, approvals, authorizations or orders of any court,
governmental agency or body and all third parties, if any, required for the
execution, delivery and performance by Purchaser of this Agreement and the
consummation of the transactions contemplated hereby.
(c) Bankruptcy or Debt of Purchaser. Purchaser has not filed
any petition seeking or acquiescing in any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief relating
to Purchaser or any of its property under any law relating to bankruptcy or
insolvency, nor, to the best of Purchaser's knowledge, has any such petition
been filed against Purchaser. No general assignment if Purchaser's property has
been made for the benefit of creditors, and, to the best of Purchaser's
knowledge, no receiver, master, liquidator, or trustee has been appointed for
Purchaser or any material portion of its property. Purchaser is not insolvent
and the consummation of the transactions contemplated by this Agreement shall
not render Purchaser insolvent.
9.6 Survival of Representations and Warranties. Notwithstanding
anything to the contrary contained in this Agreement, the representations and
warranties on the part of Seller and Purchaser contained in this Article 9 shall
survive the Closing for a period of six (6) months.
9.7 [Intentionally Omitted]
9.8 Indemnification.
(a) Subject to Section 9.8(b), in the event that Closing
occurs, Seller and FUR shall jointly and severally indemnify and hold harmless
Purchaser and Purchaser's Agents against and in respect of any and all Losses,
resulting or arising from or otherwise relating to (i) any breaches of Seller's
representations or warranties in Section 9.2 for the period such representations
and warranties survive or (ii) any nonfulfillment of or failure of Seller to
comply with any covenant or obligation set forth in this Agreement for the
period such covenant or obligation survives; provided that in each case
Purchaser must notify Seller of any claim for
-53-
55
indemnity under this Section 9.8 before the expiration of the applicable
survival period.
(b) Seller and FUR shall not be liable under Section 9.8(a)(i)
until the aggregate amount of Losses theretofore incurred by Purchaser exceed
five hundred thousand dollars ($500,000) (the "Losses Threshold"), in which case
Purchaser shall be entitled to be compensated for, and Seller shall be obligated
to pay, Losses up to a maximum aggregate amount equal to five million dollars
($5,000,000) in excess of the Losses Threshold. (By way of example, if
Purchaser's total Losses equal $501,000, Seller's liability to Purchaser under
this Section 9.8(b) shall be $1,000). All payments made in respect of any claim
under this Section 9.8 shall be treated as an adjustment to the Purchase Price
for all purposes. Any adjustments to the Purchase Price at Closing in favor of
Purchaser on account of any items set forth in Section 9.8(a)(i) shall count
toward the $5,000,000 maximum liability of Seller under this Section 9.8(b).
(c) Notwithstanding anything to the contrary contained in this
Agreement, in the event that Purchaser is entitled to the return of the Deposit
(or any portion thereof) pursuant to the other provisions of this Agreement, the
funds in the Tenant Costs Escrow Account (or any portion thereof), any fee
payable to Purchaser if the Seller Ratification is not obtained as provided in
Section 14.2 or any amounts described in Article 11, Seller and FUR hereby
jointly and severally agree to cause all such amounts to be promptly delivered
to Purchaser without regard to any thresholds, limitations or survival periods.
The provisions of this Section 9.8(c) shall survive any termination of this
Agreement or the Closing indefinitely.
(d) The provisions of this Section 9.8 shall survive the
Closing.
ARTICLE 10
DAMAGE OR DESTRUCTION; CONDEMNATION
10.1 Damage or Destruction. In the event of any damage to or
destruction of the Property or any portion thereof subsequent to the date hereof
and prior to, or on, the Closing Date, Seller shall provide written notice of
such damage or destruction ("Seller's Casualty Notice") promptly after its
occurrence, and Purchaser's rights shall be as follows:
(a) In the event that the reasonably expected cost of
restoration exceeds $2,500,000.00 at any one Mall, then Purchaser shall, within
15 days after receipt of the Seller's Casualty Notice, elect, by written notice
to Seller, either (1) to
-54-
56
terminate this Agreement, in which event the Deposit shall be returned
immediately to Purchaser, and thereupon all obligations and liabilities of the
parties hereunder shall cease and this Agreement shall have no further force and
effect except for such provisions of this Agreement which are expressly stated
to survive termination of this Agreement or (2) to proceed with the transaction
contemplated under this Agreement (except that if the Closing Date is less than
15 days following Purchaser's receipt of the Seller's Casualty Notice, the
Closing shall be delayed until Purchaser makes such election, but in no event
more than 30 days after the date of Purchaser's receipt of the Seller's Casualty
Notice), in which event Purchaser shall have no right to offset or reduction or
abatement of the Purchase Price and Purchaser shall receive at Closing (i) an
assignment of (A) all insurance proceeds theretofore paid to Seller with respect
to such damage, (B) all claims against any insurer with respect to such damage
and (C) all claims against third parties with respect to such damage and (ii)
the full amount of Seller's deductible, in cash. In the event Purchaser does not
give Seller timely notice of its election under this Section 10.1(a), Purchaser
shall be deemed to have elected to proceed under clause "(2)" above.
(b) In the event that the reasonably expected cost of
restoration is equal to or less than $2,500,000.00 at any one Mall, Purchaser
shall be obligated to proceed with the transaction contemplated under this
Agreement, in which event Purchaser shall have no right to offset or reduction
or abatement of the Purchase Price and Purchaser shall receive at Closing (i) an
assignment of (A) all insurance proceeds theretofore paid to Seller with respect
to such damage, (B) all claims against any insurer with respect to such damage
and (C) all claims against third parties with respect to such damage and (ii)
the full amount of Seller's deductible, in cash.
10.2 Condemnation. If, subsequent to the date hereof and prior to, or
on, the Closing Date, (1) any proceeding (judicial, administrative or otherwise)
shall be commenced for the proposed taking of any portion of, or interest in,
the Property by condemnation or eminent domain or any action in the nature of
eminent domain, or (2) Seller shall receive notice of any such proposed taking,
Seller shall provide written notice to Purchaser of such proceeding or proposed
taking ("Seller's Condemnation Notice") promptly after notification to Seller of
such proceeding or proposed taking and Purchaser's rights shall be as follows:
(a) In the event that the reasonably expected condemnation
award exceeds $2,500,000.00 at any one Mall, then Purchaser shall, within 15
days after receipt of the Seller's Condemnation Notice, elect, by written notice
to Seller, either (1) to terminate this Agreement, in which event the Deposit
shall be returned immediately to Purchaser, and thereupon all obligations and
liabilities of the parties
-55-
57
hereunder shall cease and this Agreement shall have no further force and effect
except for such provisions of this Agreement which are expressly stated to
survive termination of this Agreement or (2) to proceed with the transaction
contemplated under this Agreement (except that if the Closing Date is less than
15 days following Purchaser's receipt of the Seller's Condemnation Notice, the
Closing shall be delayed until Purchaser makes such election, but in no event
more than 30 days after the date of Purchaser's receipt of the Seller's
Condemnation Notice), in which event Purchaser shall have no right to offset or
reduction or abatement of the Purchase Price and Purchaser shall receive at
Closing an assignment of all of Seller's rights to any proceeds from such taking
or condemnation. In the event Purchaser does not give Seller timely notice of
its election under this Section 10.2(a), Purchaser shall be deemed to have
elected to proceed under clause "(2)" above.
(b) In the event that the reasonably expected condemnation
award is equal to or less than $2,500,000.00 at any one Mall, Purchaser shall be
obligated to proceed with the transaction contemplated under this Agreement, in
which event Purchaser shall have no right to offset or reduction of the Purchase
Price and Purchaser shall receive at Closing an assignment of all of Seller's
rights to any proceeds from such taking or condemnation.
10.3 Survival. The provisions of this Article 10 shall survive the
Closing.
ARTICLE 11
DEFAULT
11.1 Seller's Inability to Perform or Default. Except as provided in
Section 14.2, if Seller shall be unable to perform or shall default in the
performance of any of its obligations hereunder, the sole and exclusive remedy
of Purchaser (unless otherwise provided in this Agreement) shall be to terminate
this Agreement, in which event (i) the Deposit and any amounts in the Tenant
Costs Escrow Account shall be promptly returned to Purchaser and Seller
covenants to cause the same, (ii) Seller shall reimburse Purchaser for the
actual out-of-pocket third party costs incurred by Purchaser in connection with
the proposed purchase of the Property and (iii) thereupon, neither party shall
have any liability or obligation to the other party under this Agreement except
for those provisions of this Agreement which are expressly stated to survive the
termination of this Agreement; provided, however, that if the Seller
Ratification shall have been obtained and Seller shall default in the
performance of any of its obligations hereunder, then Purchaser shall be
entitled, in lieu of the remedies set forth in clauses (i) through (iii) above,
to enforce specific
-56-
58
performance of this Agreement. Purchaser shall not have the right to seek,
pursue or obtain any other remedy at law, in equity or otherwise on account of
or in connection with any such default by Seller, including, without limitation,
any right to collect damages, except as otherwise provided in this Agreement. If
Purchaser elects to terminate this Agreement pursuant to this Section 11.1,
Purchaser shall not be entitled to pursue the remedies set forth in Section
14.2. If Purchaser has available the remedies set forth in Section 14.2,
Purchaser shall not be entitled to pursue the remedies set forth in this Section
11.1.
11.2 Purchaser's Default. If Purchaser shall default in the performance
of any of its obligations hereunder, including, but not limited to, the payment
of the Additional Deposit, the sole and exclusive remedy of Seller
(notwithstanding any provision hereof to the contrary) shall be the right to
terminate this Agreement in which event the Deposit and all amounts in the
Tenant Costs Escrow Account shall be promptly paid to Seller as full and
complete liquidated damages (and not as a penalty or forfeiture) and, thereupon,
neither party shall have any liability or obligation to the other party under
this Agreement except for those provisions of this Agreement which are expressly
stated to survive the termination of this Agreement.
11.3 Recoverable Damages. In no event shall the provisions of Sections
11.1 and 11.2 limit the damages recoverable by either party against the other
party due to the other party's obligation to indemnify such party in accordance
with this Agreement.
11.4 Survival. The provisions of this Article 11 shall survive the
termination of this Agreement until all amounts payable pursuant to this Article
11 are paid in full.
ARTICLE 12
EMPLOYEES
12.1 Employees. As of 11:59 p.m. on the date prior to the Closing,
Seller shall terminate or cause to be terminated the employment of all then
existing employees of Seller, FUR and/or FUM at the Malls. Purchaser shall have
no obligation with respect to such employees except as expressly set forth in
this Section 12.1, and Seller and FUM shall jointly and severally indemnify and
hold harmless Purchaser and Purchaser's Agents against and in respect of any and
all Losses resulting or arising from or otherwise relating to such employees,
including, without limitation, Seller's termination thereof, in each case
pertaining only to the period of Seller's employment thereof. Purchaser agrees
to rehire the employees
-57-
59
who are employed on-site at any Mall for a six (6) month probationary period on
Purchaser's standard terms of employment. Such employment shall commence as of
the Closing Date.
12.2 No Transfer of Pension Assets and Liabilities. There shall be no
transfer hereunder of assets or liabilities under any pension plan maintained or
contributed to by Seller, FUR or FUM.
12.3 No Third-Party Beneficiaries. No provision of this Agreement shall
create any third party beneficiary rights in any employee or any beneficiary or
dependents thereof, with respect to the compensation, terms and conditions of
employment and benefits that may be provided to any employee by Seller, FUM or
Purchaser or under any benefit plan or arrangement which Seller, FUM or
Purchaser may maintain.
12.4 Survival. The provisions of this Article 12 shall survive the
Closing for six (6) months.
ARTICLE 13
NOTICES
13.1 Notices. Any notice, request, demand, instruction or other
document to be given or served hereunder or under any document or instrument
executed pursuant hereto shall be in writing and shall be deemed to be delivered
and effective upon the earlier of (a) upon personal delivery to and receipt by
the person to whom delivered, (b) three days after deposit in United States
registered or certified mail, return receipt requested, (c) one Business Day
after deposit with a nationally recognized overnight express courier for next
day delivery or (d) the Business Day of telecopy, in each case, addressed to the
parties at their respective addresses or telecopy numbers (as applicable) set
forth below:
If to Purchaser: WXI/Z SOUTHWEST MALLS REAL ESTATE LIMITED
PARTNERSHIP
c/o Zamias Services Inc
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telecopy No.: (000) 000-0000
-58-
60
with a copy to: WHITEHALL STREET REAL ESTATE LIMITED
PARTNERSHIP XI
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telecopy No.: (000) 000-0000
and a copy to: XXXXXXXX & XXXXXXXX
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
If to Seller: SOUTHWEST SHOPPING CENTERS CO. II, L.L.C.
000 Xxxxx Xxxxxx (Suite 1416)
New York, New York 10177-01499
Attention: Xxxx Xxxxxx
Telecopy No.: (000) 000-0000
with a copy to: XXXXXXXX WEPRIN & USTIN LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
Telecopy No.: (000) 000-0000
and a copy to: XXXXXXX, XXXXXXXXX LLP
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
and a copy to: XXXXXX & XXXX, L.L.P.
0000 Xxxx Xxxxxx (Xxxxx 0000)
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
13.2 Change of Address. A party may change its address and telecopy
number for receipt of notices by service of a notice of such change in
accordance herewith.
-59-
61
ARTICLE 14
MISCELLANEOUS
14.1 Parties Bound. All provisions hereof, including, without
limitation, all representations and warranties made hereunder, shall extend to,
be obligatory upon and inure to the benefit of the respective heirs, devisees,
legal representatives, successors, permitted assigns and beneficiaries of the
parties hereto.
14.2 Seller's Shareholder Approval.
(a) The obligations of Seller to transfer the Property
pursuant to this Agreement are contingent upon Seller obtaining consent to the
transactions contemplated hereby from shareholders of FUR holding the requisite
number of shares in accordance with the organizational and governing documents
of FUR (collectively, the "Seller Ratification") and, subject to the obligations
of Seller pursuant to the other provisions of this Section 14.2, this Agreement
shall terminate, effective on the date described in Section 14.2(c), if the
shareholders of FUR reject the sale contemplated by this Agreement; and
thereupon neither party shall have any further obligation to the other party
under this Agreement, other than the obligations of Seller under this Section
14.2 and except for those provisions which are expressly stated herein to
survive termination of this Agreement. Seller makes no representation or
warranty herein that the Seller Ratification shall be obtained.
(b) If (i) a meeting of the shareholders of FUR called for the
purpose of voting on the transactions contemplated by this Agreement is not held
on or prior to the Shareholder Approval Deadline, other than, despite the best
efforts of FUR to hold such a meeting in accordance with its obligations under
Section 8.8(b), as a result of an Excusable Delay, or (ii) the Board of Trustees
of FUR has withdrawn or failed, upon Purchaser's request, to reaffirm its
recommendation that the shareholders of FUR approve the transactions
contemplated by this Agreement, or (iii) the Board of Trustees and/or
shareholders of FUR have voted to approve a proposal, other than Purchaser's, to
purchase (or Seller or FUR has entered into a written agreement for the sale of)
all or any portion of the Real Property, or (iv) Seller or FUR has breached the
provisions of Section 8.8, then Seller shall be deemed to be in default of its
obligations under this Agreement; provided that in lieu of the remedies set
forth in this Agreement (which Purchaser shall not be entitled to), Seller or
FUR shall, in addition to returning the Deposit and all amounts in the Tenant
Costs Escrow Account to Purchaser, immediately pay to Purchaser, as Purchaser's
sole and exclusive remedy, ten million dollars ($10,000,000) as compensation and
reimbursement to Purchaser (and not as a penalty or forfeiture) for its time and
expense and out-of-pocket costs
-60-
62
incurred in connection with the transactions contemplated hereby and the loss of
potential profit that Purchaser would have realized with respect to such
transactions; and, upon Purchaser's receipt of such payment, this Agreement
shall terminate and neither party shall have any further obligation to the other
party under this Agreement except for those provisions which are expressly
stated herein to survive termination of this Agreement.
(c) If (i) this Agreement is terminated pursuant to Section
14.2(a) or (ii) the Seller Ratification is not obtained on or prior to the
Shareholder Approval Deadline due to an Excusable Delay or for any reason other
than a reason set forth in Section 14.2(b), then Seller shall be deemed unable
to perform; provided that in lieu of the remedies set forth in this Agreement
(which Purchaser shall not be entitled to), Seller or FUR shall, in addition to
returning the Deposit and all amounts in the Tenant Costs Escrow Account to
Purchaser, immediately pay to Purchaser, as Purchaser's sole and exclusive
remedy (subject to the additional remedy in Section 14.2(d)), one million five
hundred thousand dollars ($1,500,000) as compensation and reimbursement to
Purchaser (and not as a penalty or forfeiture) for its time and expense and
out-of-pocket costs incurred in connection with the transactions contemplated
hereby; and, upon Purchaser's receipt of such payment, this Agreement shall
terminate and neither party shall have any further obligation to the other party
under this Agreement, other than the obligations of Seller under Section 14.2(d)
and except for those provisions which are expressly stated herein to survive
termination of this Agreement.
(d) Notwithstanding the limitation on Purchaser's remedies set
forth in Section 14.2(c), if this Agreement terminates pursuant to Section
14.2(c) and Seller enters into a written agreement with any person or entity
other than Purchaser to sell all or any portion of the Real Property within
twelve (12) months after the date on which this Agreement terminated, then
Seller or FUR shall immediately pay to Purchaser eight million five hundred
thousand dollars ($8,500,000) as compensation to Purchaser (and not as a penalty
or forfeiture) for its time and expense in connection with the transactions
contemplated hereby and the loss of potential profit that Purchaser would have
realized with respect to such transaction; and thereupon neither party shall
have any further obligation to the other party under this Agreement except for
those provisions which are expressly stated herein to survive termination of
this Agreement.
(e) In the event that the Seller Ratification is not obtained
by the Shareholder Approval Deadline due to an Excusable Delay, Purchaser may,
in its sole discretion, extend the Shareholder Approval Deadline on one or more
occasions by written notice to Seller to a date not later than February 28,
2000.
-61-
63
(f) It is agreed between the parties that the actual costs and
damages to Purchaser in the event that Seller fails to timely obtain the Seller
Ratification are and will be impractical to ascertain and any amount payable by
Seller under this Section 14.2 is a reasonable estimate thereof. The obligation
of Seller and FUR to make any payment under this Section 14.2 shall be joint and
several.
(g) The provisions of this Section 14.2 shall not apply and
shall not be effective in the event that this Agreement is terminated pursuant
to any section of this Agreement other than this Section 14.2. The provisions of
this Section 14.2 shall survive the termination of this Agreement until all
amounts payable pursuant to this Section 14.2 are paid in full; provided that,
in any event, the provisions of Section 14.2(d) shall survive any termination of
this Agreement pursuant to Section 14.2(c) for thirteen (13) months.
14.3 Headings. The article, section and paragraph headings of this
Agreement are for convenience only and in no way define, limit or enlarge the
scope or meaning of the language hereof.
14.4 Invalidity. If any term, provision or condition of this Agreement
is found to be or is rendered invalid or unenforceable, it shall not affect the
remaining terms, provisions and conditions of this Agreement, and each and every
other term, provision and condition of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
14.5 Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
14.6 No Third Party Beneficiary. This Agreement is not intended to give
or confer any benefits, rights, privileges, claims, actions or remedies to any
person or entity as a third party beneficiary under any statutes, laws, codes,
ordinances, rules, regulations, orders, decrees or otherwise.
14.7 Amendments. This Agreement may be amended or supplemented only by
an instrument in writing executed by the party against whom enforcement is
sought.
14.8 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and all
of such counterparts shall constitute one Agreement.
-62-
64
14.9 Further Acts. In addition to the acts and deeds recited herein and
contemplated to be performed, executed and/or delivered by Seller to Purchaser,
Seller and Purchaser agree to perform, execute and/or deliver or cause to be
performed, executed and/or delivered at the Closing or after the Closing any and
all further acts, deeds and assurances as may be necessary to consummate the
transactions contemplated hereby.
The provisions of this Section 14.9 shall survive the Closing hereunder.
14.10 Extension of Performance. Whenever under the terms of this
Agreement the time for performance of a covenant or condition falls upon a
Saturday, Sunday or holiday, such time for performance shall be extended to the
next business day. Otherwise all references in this Agreement to days shall mean
calendar days.
14.11 Time. Time shall be of the essence with respect to the payment of
the Deposit by Purchaser, Purchaser's election to terminate this Agreement under
Section 4.1(b), the provisions of Section 14.2 and as set forth in Section 6.1.
14.12 Assignment. This Agreement and all rights hereunder may not be
assigned or transferred by Purchaser under any circumstances without the prior
written consent of Seller; provided that Purchaser may without the consent of
Seller assign this Agreement in whole but not in part to any affiliate approved
by GMAC. An assignment of any interest(s) in Purchaser entity shall constitute
an assignment of this Agreement.
14.13 Attorneys' Fees. Should either party employ attorneys to enforce
any of the provisions hereof, the party losing in any final judgment agrees to
pay the prevailing party all reasonable costs, charges and expenses, including
attorneys' fees, expended or incurred in connection therewith. The provisions of
this Section 14.13 shall survive the Closing hereunder and the termination of
this Agreement.
14.14 Construction. The use of the neuter singular pronoun to refer to
Seller and Purchaser shall be deemed a proper reference, even though Seller or
Purchaser may be an individual, partnership or a group of two or more
individuals. The necessary grammatical changes required to make the provisions
of this Agreement apply in the plural sense where there is more than one seller
or purchaser and to either partnerships or individuals (male or female) shall in
all instances be assumed as though in each case fully expressed. The use of the
term "including" or derivatives thereof shall be deemed to mean "including
without limitation."
-63-
65
14.15 Limitation of Liability. Notwithstanding anything contained
herein to the contrary, no owner, shareholder member, manager, or agent of
Seller, FUR or FUM, nor any advisor, trustee, director, officer, employee,
beneficiary, shareholder, participant, representative or agent of any
corporation, trust, or other entity (other than FUR or FUM as provided below)
that is or becomes an owner, shareholder, member, or manager of Seller shall
have any liability, directly or indirectly, under or in connection with this
Agreement or any agreement made or entered into under or pursuant to the
provisions of this Agreement, or any amendment or amendments to any of the
foregoing made at any time or times, heretofore or hereafter, and Purchaser and
its successors and assigns and, without limitation, all other persons and
entities, shall look solely to Seller's interest in the Property and Seller's
other assets or, only for the purposes of Section 8.8, Section 9.8 and Section
14.2, FUR and, only for the purposes of Section 12.1, FUM for the payment and
satisfaction of claims of any nature or for any performance arising under or in
connection with this Agreement.
14.16 Jurisdiction; Venue. Each of Seller and Purchaser, to the full
extent permitted by law, hereby knowingly, intentionally and voluntarily, with
and upon the advice of competent counsel, (a) submits to personal jurisdiction
in the State of New York over any suit, action or proceeding by any person
arising from or relating to this Agreement, (b) agrees that any such action,
suit or proceeding may be brought in any state or federal court of competent
jurisdiction in the City of New York, New York, (c) submits to the jurisdiction
of such courts, and (d) to the fullest extent permitted by law, each of Seller
and Purchaser agrees that it will not bring any action, suit or proceeding in
any other forum. Each of Seller and Purchaser further consents and agrees to
service of any summons, complaint or other legal process in any such suite,
action or proceeding by registered or certified U.S. Mail, postage prepaid, to
the party at the address for notices described herein and consents and agrees
that such service shall constitute in every respect valid and effective service
(but nothing herein shall affect the validity or effectiveness of process served
in any other manner permitted by law). The provisions of this Section 14.16
shall survive the Closing hereunder and shall survive the termination of this
Agreement.
14.17 1031 Exchange.
(a) Purchaser hereby acknowledges that Seller may effect an
Internal Revenue Code Section 1031 tax deferred exchange (an "Exchange"). The
Seller's rights under this Agreement may be assigned to a qualified intermediary
for the purpose of completing such an exchange. Purchaser agrees to cooperate
with Seller and the qualified intermediary in a manner necessary to complete the
exchange; provided that:
-64-
66
(i) All documents executed by Purchaser in connection
with an Exchange shall be subject to the prior approval of Purchaser and shall
recognize that such Purchaser is accommodating Seller's request and is making no
representation or warranty that the transactions qualify as a tax-free exchange
under Section 1031 of the Internal Revenue Code or any applicable state or local
laws and shall have no liability whatsoever if any transaction fails to so
qualify.
(ii) Such Exchange shall not result in Purchaser
incurring, assuming or otherwise becoming responsible for any additional costs,
obligations or liabilities. Such Exchange shall not in any way delay the
Closing.
(iii) In no event shall Purchaser be obligated to
acquire any property (other than the Property) or otherwise be obligated to take
title, or appear in the records of title, to any property in connection with
such Exchange.
(iv) In no event shall Seller's consummation of such
Exchange constitute a condition precedent to Seller's obligations under this
Agreement, and Seller's failure or inability to consummate such Exchange for any
reason or for no reason at all shall not be deemed to excuse or release Seller
from its obligations under this Agreement.
(v) In consideration of Purchaser's agreement to
provide to Seller the accommodation described in this Section 14.17, Seller
hereby agrees to indemnify Purchaser for, and hold Purchaser harmless against,
any and all Losses directly or indirectly arising out of any Exchange.
(b) The provisions of this Section 14.17 shall survive the
Closing hereunder.
14.18 Survival. Notwithstanding any provision of this Agreement to the
contrary, (i) in the event the Closing occurs or this Agreement is terminated,
those provisions of this Agreement which specifically provide that they survive
the Closing or the termination of this Agreement, as the case may be, will
remain in full force and effect for the period indicated in such provisions (or,
if no period is indicated, indefinitely) and (ii) no other provision of this
Agreement shall survive the Closing or the termination of this Agreement.
14.19 Brokerage Indemnity. Seller and Purchaser represent and warrant
each to the other that (except as set forth in this Section 14.19 they have not
dealt with any real estate broker, sales person or finder in connection with
this transaction and no person initiated or participated in the negotiation of
this Agreement or showed the Property to Purchaser, and to the knowledge of
Seller and Purchaser,
-65-
67
there are no real estate brokerage commissions, finder's fees, or other similar
fees due any person or entity on account of or as a result of this transaction,
except as set forth herein. Seller and Purchaser each agree to indemnify, defend
and hold the other harmless from and against any loss, cost, liability or
expense suffered or incurred by the other party as a result of a claim or claims
for brokerage commissions, finder's fees or other similar fees from any party or
firm that is based on the act or omission of the party in breach of the above
warranty. Seller (but not Purchaser) is obligated to pay a brokerage commission
to Broker, pursuant to a separate written agreement and hereby indemnifies
Purchaser for any claims made by Broker. The provisions of this Section 14.19
shall survive the Closing hereunder and shall survive termination of this
Agreement.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY BLANK]
-66-
68
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the date first above written.
SELLER:
SOUTHWEST SHOPPING CENTERS CO. II, L.L.C., a Delaware
limited liability company,
By: FIRST SWI, L.L.C,
a Delaware limited liability company,
its manager,
By: FIRST SOUTHWEST II, INC., a Delaware
corporation, its manager,
By:_________________________________
Name:____________________________
Title:___________________________
PURCHASER:
WXI/Z SOUTHWEST MALLS REAL ESTATE LIMITED
PARTNERSHIP, a Delaware limited partnership,
By: WXI/Z SOUTHWEST MALLS GEN-PAR, LLC, a
Delaware limited liability company, its
general partner,
By:_________________________________
Name:____________________________
Title:___________________________
FUR
only for purposes of Section 8.8, Section 9.8 and
Section 14.2 herein:
FIRST UNION REAL ESTATE EQUITY AND MORTGAGE
INVESTMENTS, an Ohio unincorporated association in
the form of a business trust,
By:__________________________________________________
Name:_____________________________________________
Title:____________________________________________
69
FUM
only for purposes of Section 12.1 herein:
FIRST UNION MANAGEMENT, INC.
By:__________________________________________________
Name:_____________________________________________
Title:____________________________________________
70
LIST OF EXHIBITS
Exhibit A Alexandria Ground Lease Assignments
Exhibit B Assignment of Anchor Agreements
Exhibit C Assignment of Contracts
Exhibit D Assignment of Leases and Specialty License Agreements
Exhibit E Xxxx of Sale and Blanket Conveyance
Exhibit F Anchor Estoppel Certificate
Exhibit G Tenant Estoppel Certificate
Exhibit H Forms of Deeds
Exhibit I Form of Affidavit
