Exhibit 10.23.6
EASTLAND MEDICAL BUILDING PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS EASTLAND MEDICAL BUILDING PURCHASE AND SALE AGREEMENT AND JOINT
ESCROW INSTRUCTIONS ("Agreement") is made and entered into as of this 17th day
of October, 2005 (the "Effective Date") by CBL & ASSOCIATES LIMITED PARTNERSHIP,
a Delaware limited partnership ("CBL/OP") and BMJ MEDICAL, LLC, a Missouri
limited liability company ("Property Owner").
WITNESSETH:
WHEREAS, Property Owner is the owner of a medical office building and
related land, improvements and property located in Bloomington, XxXxxx County,
Illinois, which is more particularly described in, and is the subject of, this
Agreement; and
WHEREAS, CBL/OP is a Delaware limited partnership which desires to acquire
the "Property" (described below) on the terms described in this Agreement; and
NOW, THEREFORE, in consideration of the premises and the mutual
undertakings in this Agreement, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS AND FUNDAMENTAL PROVISIONS
This Article I sets forth certain definitions and fundamental provisions
for purposes of this Agreement. An index of defined terms used in this Agreement
is included with the Table of Contents of this Agreement.
1.1 "Property" means, collectively, all of Property Owner's right, title and
interest in the Land, the Appurtenances, the Improvements, the Service
Contracts, the Intangible Property and the Personal Property, as such terms are
defined below.
1.1.1 "Land" means, collectively, that certain parcel of land located in
Bloomington, Illinois, which is described in Exhibit A attached hereto.
1.1.2 Intentionally Omitted"
1.1.3 "Appurtenances" means all right, title and interest, if any, of Property
Owner in and to the following: (a) all land lying in the bed of any street,
highway, road or avenue, open or proposed, public or private, in front of or
adjoining the Land, to the center line thereof; (b) all rights of way, highways,
public places, easements, appendages, appurtenances, sidewalks, alleys, strips
and gores of land adjoining or appurtenant to the Land which are now or
hereafter may be used in connection with the Property; (c) all awards to be made
in lieu of any of the foregoing or for damages to the Land by reason of the
change of grade of any street, highway, road or avenue; and (d) all easements,
rights and privileges benefiting the applicable Land.
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1.1.4 "Improvements" means all buildings, structures, improvements and fixtures
located on the Land.
1.1.5 "Service Contracts" means any service, supply, maintenance, repair,
construction and management contracts to which Property Owner is a party
relating to the Real Property (as defined below).
1.1.6 "Intangible Property" means all assignable intangible personal property,
if any, now or through the date of Closing owned by Property Owner and arising
out of or in connection with Property Owner's ownership of the Real Property,
the Service Contracts and the Personal Property, including (to the extent any
such items exist) (a) Property Owner's rights to use any plans, specifications
and drawings relating to the Improvements (subject to the rights of the parties
who prepared the same), (b) Property Owner's rights to any current names, logos,
designs, trademarks, service marks, copyrights, and trade names used solely in
connection with the Real Property (including but not limited to any internet
domain names), (c) the goodwill of Property Owner in connection with the Real
Property, (e) all advertising materials, marketing programs and strategies, and
other similar rights relating solely to Property Owner's use and operation of
the Real Property, the Service Contracts and the Personal Property, (f) any
transferable licenses, permits and certificates of occupancy issued by
governmental authorities relating solely to the use, maintenance, occupancy
and/or operation of the Real Property, (g) any presently effective and
assignable warranties and guaranties issued solely with respect to the Real
Property, the Service Contracts and the Personal Property, and (h) the Books and
Records (as defined below).
1.1.7 "Intentionally Omitted.
1.1.8 "Personal Property" means, to the extent any such items exist, any
apparatus, furniture, appliances, building supplies, equipment, machinery and
other tangible items of personal property owned by Property Owner and presently
affixed, attached to, placed or situated upon the Real Property and used
exclusively in connection with the ownership, operation and occupancy of the
Real Property. Personal Property does not include any items of personal property
leased to Property Owner or otherwise owned by third parties, or any of the
Excluded Property referred to in Section 2.2 below.
1.1.9 "Real Property" means collectively the Land, the Improvements and the
Appurtenances.
1.1.10 "Intentionally Omitted.
1.1.11 Intentionally Omitted
1.1.12 "Books and Records" means all site and as built plans, surveys, soil and
substrata studies, architectural renderings, plans and specifications,
engineering plans and studies, floor plans, landscape plans and other plans,
diagrams or studies of any kind, if any, now in the possession or reasonable
control of Property Owner or Property Owner's Property Manager which relate to
the Land, the Improvements or the Personal Property, and all of Property Owner's
right, title and interest in and to operating manuals, marketing brochures,
market studies, tenant data sheets and other books, records and materials of any
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kind now in the possession or reasonable control of Property Owner or Property
Owner's Property Manager and required in connection with the continuing
ownership, operation and management of the Improvements, and all financial and
accounting records of the Property Owner for all periods from and after August
1, 2005.
1.2 "Final Approval Date" means the Effective Date.
1.3 "Title Objection Deadline" means 5:00 p.m., Kansas City, Missouri time (it
being agreed that all times in this Agreement shall be deemed to refer to
Kansas City, Missouri time) on the later to occur of (i) the Effective date and
(ii) the fifth (5th) Business day after CBL/OP's receipt of all of the Title
Documents.
1.4 "Closing Date" means the (A) date that is the earlier of: (i) three (3)
business days after the conditions set forth in Sections 5.2.11 and 5.3.7 of
the Oak Park Contract and the Eastland Contract have been satisfied pursuant to
their terms, and (ii) November 30, 2005, or (B) any earlier date upon which
Property Owner and CBL/OP mutually agree.
1.5 "Title Company" means Fidelity National Title Insurance Company whose
address is:
1800 Parkway Place
Xxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
1.6 "CBL/OP's Address" means:
CBL & Associates Limited Partnership
c/o CBL and Associates Properties, Inc.
0000 Xxxxxxxx Xxxxx Xxxxxxxxx
XXX Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxx Xxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Shumacker Xxxx Xxxxxxx & Xxxxxxxx, P.C.
2030 Xxxxxxxx Place Boulevard
CBL Center, Suite 210
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Xx.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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and to
Xxxxxxxx & Xxxxxxxx LLP
1290 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
1.7 "Property Owner's Address" means:
BMJ Medical, LLC
c/o Copaken, White & Blitt
0000 Xxxxx Xxxx Xx., Xxxxx 000
Xxxxxxx, Xxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone No.: (000) 000-0000
With a copy to:
Xxxxx, Rice & Fingersh
0000 Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx XxXxxxxxxx
Facsimile: (000) 000-0000
Telephone No.: (000) 000-0000
1.8 "Property Owner's Property Manager" means Copaken, White & Blitt, LLC
whose address is 0000 Xxxxx Xxxx Xx., Xxxxx 000, Xxxxxxx, Xx. 00000.
1.9 "Official Records" means the Official Records of the Register of Deeds for
XxXxxx County, Illinois.
1.10 Intentionally Omitted
1.11 "Purchase Price " means the sum of $751,650.00.
1.12 "Escrow Agent" means Fidelity National Title Insurance Company
of New York, having its office at 0000 Xxxxxxx Xxxxx, Xxx Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000; Attention: Xxxxx Xxxxxxx.
1.13 "Other Mall Contributors" means those parties identified and defined as
"Contributors" in the Oak Park Contract and the Eastland Contract.
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ARTICLE II
PURCHASE AND SALE
2.1 Agreement. In consideration of the mutual agreements contained in this
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Property Owner agrees to sell the
Property to CBL/OP, and CBL/OP agrees to purchase the Property, for the
Purchase Price and upon the terms and conditions set forth in this Agreement.
2.2 Excluded Property. Notwithstanding anything to the contrary contained in
this Agreement, the term "Property" shall not include any of the following
items, all of which are excluded from the transfer by Property Owner to CBL/OP
hereunder: (a) all cash on hand, , checks, money orders or accounts receivable,
(b) any operating accounts, replacement or reserve accounts or other accounts
maintained by or on behalf of Property Owner or Property Owner's affiliates
with respect to the Property, other than those for which an adjustment is made
pursuant to the last sentence of Section 6.3 below; (c) any refundable cash or
other security deposits or any bonds posted by or on behalf of Property Owner
with any governmental authorities, utilities or other parties, other than those
for which an adjustment is made pursuant to the last sentence of Section 6.3
below; (d) Intentionally Omitted; (e) subject to Article XI below, any claims
under Property Owner's insurance policies; (f) Intentionally Omitted; (g) any
judgments which have been entered in favor of Property Owner as of the
Effective Date for Delinquent Rentals; (h) the Excluded Documents; and (i)
Property Owner's accounting software, provided however, that if such software
is subject to a license that prohibits its commercial transfer, Property Owner
shall, for up to ninety (90) days following the Closing Date, reasonably assist
CBL OP in reviewing and copying, at CBL/OP's expense (by hard copy as well as
electronically) all Books and Records provided to CBL OP hereunder in
electronic form and to the transfer of such electronic Books and Records to CBL
OP's accounting and property management systems.
2.3 Other Mall Contribution Agreements.
2.3.1 Definitions of other Malls and Purchase Agreements. For purposes hereof,
(i) "Oak Park Contract" shall mean that certain Contribution Agreement of even
date herewith by and between Oak Park Investment, L.P., a Delaware limited
partnership ("Oak Park Property Owner"), and its partners, as contributors, and
CBL/OP, with respect to the property commonly known as Xxx Xxxx Xxxx, Xxxxxxxx
Xxxx, Xxxxxx, herein "Oak Park Mall"; (ii) "Eastland Contract" shall mean that
certain Contribution Agreement of even date herewith by and between B-M-J
Development, Limited Partnership, a Delaware limited partnership ("Eastland
Property Owner"), and its partners, as contributors, and CBL/OP, with respect to
the property commonly known as Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxx, herein
"Eastland Mall."; and (iii) "Hickory Point Contract" shall mean that certain
Purchase and Sale Agreement of even date herewith by and between HP-SP
Associates, L.L.C., a Delaware limited partnership, and Hickory Point Mall,
Limited Partnership, a Delaware limited partnership (collectively, "Hickory
Point Property Owner"), as seller, and CBL/OP, as buyer, with respect to the
property commonly known as Xxxxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxxx, herein
"Hickory Point Mall." The Oak Park Contract, Hickory Point Contract and the
Eastland Contract are sometimes collectively referred to herein as the "Other
Mall Contracts," and Oak Park Mall, Hickory Point Mall and Eastland Mall are
sometimes collectively referred to herein as the "Other Malls."
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2.3.2 Other Mall Contracts; Cross Default; Cross Termination. (A) Any default or
material breach of a representation or warranty by the property owner and/or
contributors under either of the Other Mall Contracts shall constitute a default
of Property Owner under this Agreement, and any proper termination prior to
Closing by CBL/OP of either of the Other Mall Contracts as a result of a default
or material breach of a representation or warranty by the property owner and/or
contributors thereunder, shall constitute CBL/OP's proper election to terminate
this Agreement and recover the Letter of Credit or Deposit paid by CBL/OP under
the Other Mall Contracts, as applicable; and (B) any default or material breach
of a representation or warranty by CBL/OP under either of the Other Mall
Contracts shall constitute a default of CBL/OP under this Agreement, and any
proper termination prior to Closing by the property owner of either of the Other
Mall Contracts as a result of a default or material breach of a representation
or warranty by CBL/OP thereunder, shall constitute Property Owner's proper
election to terminate this Agreement that entitles Oak Park Property Owner to
draw on the Letter of Credit and receive payment of the Deposit.
ARTICLE III
PURCHASE PRICE
3.1 Purchase Price. Subject to the terms of this Agreement, the Purchase Price
to be received by Property Owner for the sale of the Property to CBL/OP shall
be $751,650.00, payable by wire transfer of immediately available funds at the
Closing.
3.2 Intentionally Omitted
3.3 Intentionally Omitted
3.4 Intentionally Omitted
3.5 Intentionally Omitted
3.6 Intentionally Omitted
3.7 Purchase Price Payment. CBL/OP shall deposit the Purchase Price into Escrow
no later than the Business Day immediately preceding the Closing Date in
sufficient time such that the Closing may occur and Escrow Holder will be able
to deliver good funds to Property Owner no later than 1:00 p.m. on the Closing
Date.
ARTICLE IV
INSPECTION AND TITLE REVIEW
4.1 CBL/OP's Inspections.
4.1.1 Inspections, Tests and Studies. CBL/OP acknowledges that prior to the
Final Approval Date, CBL/OP and CBL/OP's authorized agents, consultants,
contractors and representatives have been afforded access to the Real Property
to inspect and conduct such tests and studies of the Real Property as CBL/OP has
deemed appropriate to determine the suitability of the Property for CBL/OP's
purposes, and that CBL/OP has performed all such investigations as CBL/OP deems
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necessary. CBL/OP and CBL/OP's authorized agents, consultants, contractors and
representatives may continue to have reasonable access to the Real Property at
all reasonable times during normal business hours to inspect and conduct
reasonably necessary non-invasive tests and studies of the Real Property and the
Improvements, but notwithstanding anything to the contrary contained in this
Agreement, CBL/OP shall have no right to terminate this Agreement by reason of
any matter revealed by any such entry, inspection, tests and studies. CBL/OP
shall not conduct any invasive inspections, tests or studies of the Real
Property without the specific prior written approval of Property Owner, which
approval shall not be unreasonably withheld by Property Owner. If CBL/OP desires
access to the Real Property, CBL/OP shall give at least 24 hours prior written
or oral notice to Property Owner and Property Owner's Property Manager of
CBL/OP's intention to enter the Real Property. Property Owner may impose
reasonable conditions on any inspections, tests and studies to be conducted by
CBL/OP or CBL/OP's authorized agents, consultants, contractors and
representatives to ensure that CBL/OP takes all appropriate safety precautions
and observes the requirements of Section 4.4 below. At Property Owner's option,
a representative of Property Owner may be present for any such inspection, test
or study. CBL/OP shall bear the cost of all inspections, tests and studies
conducted by or on behalf of CBL/OP.
4.1.2 CBL/OP's Delivery of Information to Property Owner. Upon Property Owner's
request, CBL/OP agrees to deliver to Property Owner, promptly following the
receipt thereof by CBL/OP and at no cost to Property Owner, copies of any and
all reports, tests, studies and test results obtained by CBL/OP from independent
third parties by or on behalf of CBL/OP with respect to the Property before or
after the execution and delivery of this Agreement, including those involving
the structural, geologic, environmental or other condition of the Property or
otherwise relating to the Property (collectively, "CBL/OP's Information").
Property Owner hereby acknowledges that CBL/OP has not made and does not make
any warranty or representation regarding the truth or accuracy of any CBL/OP's
Information, and Property Owner shall not have the right to rely on the same
unless it obtains the written permission to do so from the preparer thereof.
Nothing contained in this Section 4.1.2 shall be deemed to obligate CBL/OP to
deliver to Property Owner any CBL/OP's Information which CBL/OP obtains
following the Closing.
4.1.3 Tenant and Governmental Authority Inquiries. Subject to the provisions of
this Section and Section 4.4 below, CBL/OP shall have the right, as part of
CBL/OP's due diligence investigation, Property Owner's Property Manager and
governmental authorities about various aspects of the Property. CBL/OP shall
provide Property Owner with at least 24 hours prior written or oral notice of
each such inquiry, contact, interview and meeting and Property Owner shall have
the right to have a representative of Property Owner present and otherwise
participate in all such inquiries, contacts, interviews and meetings. Property
Owner shall not be liable or bound in any manner by any oral or written
statements, representations or information provided by Property Owner's Property
Manager, any governmental authority or any of such parties' personnel, employees
or contractors (including any on site building manager or building engineer).
4.2 Document Review.
4.2.1 Property Records. Following the Effective Date, Property Owner shall make
available to CBL/OP either at the Real Property or at Property Owner's and
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Property Owner's Property Manager's offices in Leawood, Kansas, copies of those
documents and property records relating solely to the Property, other than the
Excluded Documents, which are within the possession of Property Owner or
Property Owner's affiliates and advisors. Following the Effective Date, Property
Owner shall direct Property Owner's Property Manager to make available to CBL/OP
at the Property Manager's office, or at the on-site management office at the
Real Property, all of those documents and property records relating solely to
the Property, other than the Excluded Documents, which are in the possession of
Property Owner's Property Manager. All of such documents, reports, tests,
studies and property records delivered to, made available to, copied and/or
reviewed by or on behalf of CBL/OP in connection with the Property (whether
before or after the Effective Date and specifically including all Service
Contracts), other than the Excluded Documents, are sometimes referred to
collectively herein as the "Property Records."
4.2.2 Excluded Documents. As used herein, "Excluded Documents" shall mean (a)
any purchase and escrow agreements and correspondence pertaining to Property
Owner's acquisition of the Property (other than documents pertaining to the
physical or environmental condition of the Real Property), (b) any documents
pertaining to the potential acquisition of the Property by any past or
prospective purchasers (other than documents relating to the physical or
environmental condition of the Real Property), (c) any third party purchase
inquiries and correspondence, appraisals or economic evaluations of the
Property, (d) Property Owner's organizational documents and records, internal
budgets, financial projections, reports or correspondence prepared by Property
Owner or by Property Owner's advisor exclusively for Property Owner or Property
Owner's constituent principals and any other internal documents (other than
documents relating to the physical, financial or environmental condition of the
Real Property), (e) any personnel records and files maintained by or on behalf
of Property Owner with respect to individuals, if any, employed at or in
connection with the Real Property which Property Owner is obligated by law or
otherwise to keep confidential, and (f) any documents or materials which are the
subject of a confidentiality obligation. If any document or material subject to
a confidentiality obligation will be binding on CBL/OP after the Closing,
Property Owner shall use its best efforts to obtain any required consents to
disclose the same to CBL/OP and will notify CBL/OP if there are any such
documents or materials for which it has not been able to obtain such consent.
Notwithstanding anything in this Section 4.2 to the contrary, Property Owner
shall have no obligation to make available to CBL/OP and CBL/OP's authorized
agents, consultants, contractors and representatives, and CBL/OP and CBL/OP's
authorized agents and representatives shall have no right to inspect or make
copies of, any of the Excluded Documents.
4.2.3 Proprietary Information. CBL/OP acknowledges and agrees that the Property
Records are proprietary and confidential in nature and have been or will be made
available to CBL/OP solely to assist CBL/OP in determining the feasibility of
purchasing the Property. CBL/OP agrees, prior to the Closing, not to disclose
the Property Records, any of the CBL/OP's Information, or any analyses,
compilations, studies or other documents or records prepared by or on behalf of
CBL/OP from any of the Property Records or the CBL/OP's Information
(collectively, the "Proprietary Information") to any party outside of CBL/OP's
organization except (a) as necessary to CBL/OP's agents, consultants,
contractors, representatives, attorneys, accountants, lenders, prospective
lenders, investors and/or prospective investors (collectively, the "Permitted
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Outside Parties"), or (b) as may be required by any law applicable to CBL/OP.
CBL/OP further agrees to notify all Permitted Outside Parties that, prior to the
Closing, the Proprietary Information is to be kept confidential and not
disclosed to third parties. In permitting CBL/OP and the Permitted Outside
Parties to review the Property Records to assist CBL/OP, Property Owner has not
waived any privilege or claim of confidentiality with respect thereto, and no
third party benefits or relationships of any kind, either expressed or implied,
have been offered, intended or created by Property Owner and any such claims are
expressly rejected by Property Owner and waived by CBL/OP.
4.2.4 Return of Property Records. At such time as this Agreement is terminated
for any reason, CBL/OP shall return to Property Owner the copies of all of the
Property Records delivered to CBL/OP by or on behalf of Property Owner, and
CBL/OP shall destroy, and instruct all Permitted Outside Parties in writing to
destroy, any and all copies CBL/OP or the Permitted Outside Parties have made of
the Property Records.
4.2.5 No Representation or Warranty By Property Owner. CBL/OP acknowledges that
many of the Property Records were prepared by third parties other than Property
Owner. CBL/OP further acknowledges and agrees that, except as expressly set
forth in this Agreement, (a) neither Property Owner nor any of Property Owner's
respective agents, advisors, employees or contractors has made any warranty or
representation regarding the truth, accuracy or completeness of the Property
Records, (b) Property Owner expressly disclaims any such representation or
warranty, and (c) Property Owner has not undertaken any independent
investigation as to the truth, accuracy or completeness of the Property Records
and Property Owner is providing the Property Records or making the Property
Records available to CBL/OP solely as an accommodation to CBL/OP.
4.2.6 Remedies. In addition to any other remedies available to Property Owner,
Property Owner shall have the right to seek equitable relief (including specific
performance and injunctive relief) against CBL/OP and CBL/OP's agents,
consultants, contractors and representatives to enforce the provisions of
Section 4.2.3 and Section 4.2.4.
4.3 Title.
4.3.1 Title Documents. Prior to the execution and delivery of this Agreement,
CBL/OP received copies of the following items (collectively, the "Title
Documents"): (a) that certain Title Commitment No. 1606000261776 issued
effective August 9, 2005 by Chicago Title Insurance Company, as agent for the
Title Company with respect to the Real Property (the "Title Commitment"); (b)
all documents referred to in the Schedule B exceptions shown on the Title
Commitment; (c) Eastland Shopping Center, Bloomington, Illinois, prepared by
Xxxxxxxxxx Group as Project No. 105637, certified by Xxxxx X. Xxxxx, PLS
No.3032, on September 7, 2005 (the "ALTA Survey"); and (d) an update and/or
modification and recertification of the ALTA Survey which has been ordered by
CBL/OP, at CBL/OP's sole cost and expense(the "Updated Survey"). CBL/OP shall
promptly request and deliver to the Title Company the Updated Survey in
sufficient time prior to the Title Objection Deadline so that any title
exception for discrepancies, conflicts in boundary lines, shortages in area,
encroachments, easements or claims of easements and other matters which would be
disclosed by a physical inspection of the Real Property, the ALTA Survey or by
the Updated Survey (collectively, "Survey Exceptions") shall be addressed as
Title Objections pursuant to Section 4.3.2 below.
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4.3.2 Review of Title. All matters shown in the Title Documents which are not
objected to by CBL/OP by delivery of written notice thereof ("CBL/OP's Title
Objection Notice") to Property Owner on or before the Title Objection Deadline
shall be conclusively deemed to be accepted by CBL/OP. If CBL/OP timely delivers
CBL/OP's Title Objection Notice to Property Owner prior to the Title Objection
Deadline specifying CBL/OP's objection to any title exception pertaining to the
Real Property shown in the Title Documents (each a "Title Objection" and
collectively the "Title Objections"), Property Owner may, but except for
Voluntary Title Encumbrances, shall not be obligated to, remove from the Title
Policy or insure against (by title endorsement from the Title Company or
otherwise) some or all of such Title Objections. If Property Owner is able and
willing to remove or insure against some or all of the Title Objections,
Property Owner shall notify CBL/OP in writing within 5 days after the Title
Objection Deadline ("Property Owner's Notice Period") of those Title Objections
which Property Owner intends to attempt to remove or insure against on or before
the Closing Date (said notice hereinafter called "Property Owner's Title
Notice"). Without the necessity of objection by CBL/OP, Property Owner shall
comply with all of the requirements set forth in Schedule C of the Title
Commitment. Except for Voluntary Title Encumbrances, Property Owner shall have
no obligation whatsoever to remove or insure against any Title Objections. If
Property Owner delivers Property Owner's Title Notice and thereafter Property
Owner is unable to remove or insure against any Title Objection as indicated in
Property Owner's Title Notice, Property Owner shall have no liability to CBL/OP
and CBL/OP's sole remedy in such event shall be to either waive such Title
Objections and proceed with the Closing or terminate this Agreement. If Property
Owner does not deliver Property Owner's Title Notice to CBL/OP within Property
Owner's Notice Period, Property Owner shall be deemed to have notified CBL/OP
that Property Owner is unable or unwilling to remove or insure against the Title
Objections. If Property Owner notifies or is deemed to have notified CBL/OP that
Property Owner is unable or unwilling to remove or insure against any particular
Title Objection, CBL/OP shall be deemed to have waived those Title Objections
which Property Owner is unable or unwilling to remove or insure against unless
on or before the later to occur of (i) the Final Approval Date or (ii) 5 days
following receipt of the Property Owner's Title Notice (or 5 days following the
last day of the Property Owner's Notice Period if the Property Owner does not
give a Property Owner's Title Notice), CBL/OP delivers to Property Owner and
Escrow Holder written notice terminating this Agreement. If CBL/OP so elects to
terminate this Agreement by written notice to Property Owner and Escrow Holder
as provided in the preceding sentence, CBL/OP shall be entitled to a return of
the Letter of Credit or the Deposit, as applicable, and neither party shall have
any further rights or obligations under this Agreement, except for those
obligations of CBL/OP under this Agreement which expressly survive the
termination of this Agreement ("CBL/OP's Surviving Obligations").
4.3.3 Additional Title Objections. CBL/OP shall have the right to object to any
new title exceptions (other than Permitted Exceptions as defined in Section
4.3.7 below) first raised by the Title Company in any modification, update,
recertification or amendment to the Title Commitment which is issued after the
Effective Date of this Agreement by giving written notice ("CBL/OP's Additional
Title Objection Notice") to Property Owner within 5 days after CBL/OP's receipt
of any such modification, update, recertification or amendment, but in any event
no later than the Closing Date. If CBL/OP timely delivers CBL/OP's Additional
Title Objection Notice to Property Owner specifying CBL/OP's objection to any
new title exception first raised in a modification, update, recertification or
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amendment to the Title Commitment which is issued after the Effective Date of
this Agreement (each an "Additional Title Objection" and collectively the
"Additional Title Objections"), Property Owner may, but except for Voluntary
Title Encumbrances, shall not be obligated to attempt to remove from the Title
Commitment or otherwise insure (at Property Owner's expense) against some or all
of such Additional Title Objections set forth in any CBL/OP's Additional Title
Objection Notice. If Property Owner does not notify CBL/OP in writing within 5
days after Property Owner's receipt of CBL/OP's Additional Title Objection
Notice (but in any event prior to the Closing Date) that Property Owner is
willing to so remove or otherwise insure against any Additional Title
Objections, Property Owner shall be deemed to have notified CBL/OP that Property
Owner is unable or unwilling to remove or otherwise insure against such
Additional Title Objections. If Property Owner does notify CBL/OP that Property
Owner is willing to remove or otherwise insure against any Additional Title
Objections and thereafter Property Owner is unable to remove or otherwise insure
against any Additional Title Objections as indicated in Property Owner's notice,
Property Owner shall have no liability to CBL/OP and CBL/OP's sole remedy in
such event shall be to either waive such Additional Title Objection and proceed
with the Closing or terminate this Agreement. If Property Owner notifies or is
deemed to have notified CBL/OP that Property Owner is unable or unwilling to
remove or insure against any particular Additional Title Objection, CBL/OP shall
be entitled to terminate this Agreement by delivering within 10 days after the
CBL/OP's Additional Title Objection Notice written notice to Property Owner and
Escrow Holder terminating this Agreement. CBL/OP's failure to deliver such
written notice electing to terminate this Agreement to Property Owner and Escrow
Holder within such 10 day period shall be deemed CBL/OP's waiver of the
particular Additional Title Objection which Property Owner is unable or
unwilling to remove from the Title Policy or otherwise insure against. If this
Agreement is terminated on or before the Closing Date by reason of an Additional
Title Objection, the Letter of Credit or the Deposit, as applicable, shall be
returned to CBL/OP (including all interest which has accrued thereon while the
Deposit was held by Escrow Holder, but not any interest which has accrued
thereon while held by Property Owner) and neither party shall have any further
rights or obligations under this Agreement, except for the CBL/OP's Surviving
Obligations. Notwithstanding anything herein to the contrary, if CBL/OP's right
to terminate this Agreement pursuant to the foregoing provisions of this Section
4.3.3 has not expired prior thereto, it shall expire upon the Closing Date. If
CBL/OP is first notified of any new title exception (other than Permitted
Exceptions) less than 15 days prior to the Closing Date, the Closing shall be
extended until 5 days after the disposition of such new title exception is
determined pursuant to this Section 4.3.3.
4.3.4 Voluntary Title Encumbrances. As used herein "Voluntary Title
Encumbrances" means liens or encumbrances against the Property that are created
by Property Owner or which result from Property Owner's failure to pay for an
obligation of Property Owner after the Effective Date and that can be removed or
insured against solely by the payment of a liquidated sum of money; provided,
however, that the term "Voluntary Title Encumbrances" as used in this Agreement
shall not include the following: (a) any Permitted Exceptions; (b) Intentionally
Omitted; (c) Intentionally Ommited; (d) any liens or encumbrances against the
Property that are approved by CBL/OP or deemed approved by CBL/OP in accordance
with the provisions of this Agreement; or (e) Intentionally Omitted.
Notwithstanding anything to the contrary contained in Section 4.3.2 or Section
4.3.3 above, Property Owner shall remove from the Title Policy or otherwise
insure against all Voluntary Title Encumbrances on or before the Closing. If
from time to time prior to the Closing, either Property Owner or CBL/OP shall
become aware of any Voluntary Title Encumbrances, then Property Owner or CBL/OP
11
shall promptly notify the other party thereof, which notice shall describe in
reasonable detail the Voluntary Title Encumbrance(s) at issue and Property Owner
shall remove from the Title Policy or otherwise insure against all such
Voluntary Title Encumbrance(s) on or prior to Closing.
4.3.5 Use of Purchase Price to Discharge Liens. At the Closing, Property Owner
may, at Property Owner's option, use the proceeds of the Purchase Price to
discharge any monetary lien or encumbrance which Property Owner elects to pay or
discharge; provided, however, the preceding shall not be construed as obligating
Property Owner to satisfy any lien or encumbrance on the Property other than
Voluntary Title Encumbrances. Any lien or encumbrance or apparent lien or
encumbrance appearing of record against the Property which can be discharged by
the payment of money shall not be an objection to title if Property Owner, at
Property Owner's sole option, shall at the Closing cause to be delivered either
(a) a duly executed and acknowledged satisfaction along with the filing fee, or
(b) a payoff letter or demand and the appropriate funds to satisfy the lien or
encumbrance.
4.3.6 Title Policy. CBL/OP's obligation to consummate the transactions
contemplated by this Agreement shall be subject to and conditioned upon the
Title Company's willingness to issue, upon the condition of the payment of the
Title Company's premium and the delivery of the documents referred to in Section
5.6 below, an ALTA Extended Coverage Owner's Policy of Title Insurance (referred
to herein as the "Title Policy"), insuring CBL/OP in the amount of the Purchase
Price that fee title to the Real Property is vested in CBL/OP as of the Closing,
subject only to the title policy form conditions, exclusions from coverage and
exceptions, and the Permitted Exceptions. Notwithstanding the immediately
preceding sentence, the issuance of ALTA Extended Coverage and any title
endorsements as part of the Title Policy shall not be a condition precedent to
the Closing unless (a) CBL/OP has delivered to the Title Company prior to the
Closing Date, any necessary modification, update or recertification of the ALTA
Survey in current insurable form and otherwise satisfactory to the Title
Company, (b) the Title Company confirms in writing to CBL/OP and Property Owner
prior to the Title Objection Deadline the Title Company's willingness to issue
ALTA Extended Coverage and those title endorsements which have been requested by
CBL/OP prior to the Title Objection Deadline, and (c) CBL/OP pays for all costs
of such ALTA Extended Coverage in excess of ALTA Standard Coverage and the costs
of any such title endorsements requested by CBL/OP (other than any endorsements
Property Owner has agreed to cause to be issued pursuant to a Property Owner's
Title Notice). If, prior to the Title Objection Deadline, CBL/OP has not
delivered any necessary modification, update or recertification of the ALTA
Survey in current insurable form satisfactory to the Title Company and the Title
Company has not confirmed in writing to CBL/OP and Property Owner prior to the
Title Objection Deadline the Title Company's willingness to issue ALTA Extended
Coverage and those title endorsements requested by CBL/OP, then the condition in
this Section 4.3.6 shall be the Title Company's willingness to issue an ALTA
Standard Coverage Owner's Policy of Title Insurance (with only those
endorsements the Title Company has affirmatively agreed in writing prior to the
Title Objection Deadline to issue) and all references in this Agreement to the
"Title Policy" shall mean and refer to such ALTA Standard Coverage Owner's
Policy of Title Insurance rather than an ALTA Extended Coverage Owner's Policy
of Title Insurance. In the event of any failure of the condition in this Section
4.3.6, CBL/OP shall have the right to terminate this Agreement by delivering
written notice thereof to Property Owner and Escrow Holder no later than the
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Closing Date, and the failure by CBL/OP to timely deliver such notice of
termination shall be deemed CBL/OP's waiver of such condition. If such
termination notice is provided, Property Owner shall nonetheless have a period
of 10 days after receipt of such notice to satisfy such condition (and the
Closing Date shall be accordingly extended, if applicable), and if such
condition is remedied within such 10 day period, the Closing shall be
consummated in accordance with the provisions of this Agreement. In the event of
any such termination, the Letter of Credit or the Deposit, as applicable, shall
be returned to CBL/OP and neither party shall have any further rights or
obligations under this Agreement, except for the CBL/OP's Surviving Obligations.
The Title Company's willingness at Closing to issue the Title Policy to CBL/OP
shall only be a condition to CBL/OP's obligations and not a covenant of Property
Owner.
4.3.7 Permitted Exceptions. As used in this Agreement, the term "Permitted
Exceptions" shall mean (a) all matters disclosed in the Title Documents and to
which CBL/OP does not raise a Title Objection prior to the Title Objection
Deadline, or, having objected, CBL/OP waives or is deemed to have waived in
accordance with the provisions of Section 4.3.2 above; (b) any new title
exceptions first raised by the Title Company in any modification, update,
recertification or amendment to the Title Commitment issued after the Effective
Date and to which CBL/OP does not raise an Additional Title Objection within the
prescribed time, or, having objected, CBL/OP waives or is deemed to have waived
in accordance with the provisions of Section 4.3.3 above; (c) Intentionally
Omitted; (d) Intentionally Omitted; (e) Intentionally Omitted; (f) Intentionally
Omitted; (g) Intentionally Omitted; (h) any Survey Exceptions unless objected to
by CBL/OP in accordance with Section 4.3.2 above; (i) non-delinquent Real Estate
Taxes (including liens for community facilities districts, business improvement
districts or local improvement districts) for the fiscal year in which the
Closing occurs; (j) all zoning restrictions, regulations and requirements, all
building codes and all other applicable laws, ordinances and governmental
regulations affecting the Property; and (k) all matters directly or indirectly
caused by CBL/OP or arising through CBL/OP. Notwithstanding anything to the
contrary contained in this Agreement, liens and encumbrances for the payment of
any non-delinquent community facilities district taxes, business improvement
district charges and/or any local improvement district levies and special
assessments shall not be discharged at Closing and shall not be an objection to
title (subject to the proration of the current installments thereof as provided
in Section 6.2 below).
4.4 Inspection Obligations.
4.4.1 CBL/OP's Responsibilities. CBL/OP agrees that when entering the Real
Property and conducting any investigations, inspections, tests and studies of
the Property or the Property Records prior to or following the execution and
delivery of this Agreement, CBL/OP and CBL/OP's agents, consultants, contractors
and representatives shall be obligated to: (a) Intentionally Omitted; (b) not
unreasonably interfere with the operation, use and maintenance of the Property
or any of the construction work being performed at the Property; (c) not damage
any part of the Property or any personal property; (d) not injure or otherwise
cause bodily harm to Property Owner or any of Property Owner's agents,
contractors and employees, or any other third party; (e) maintain commercial
general liability (occurrence) insurance in terms and amounts set forth in
Section 4.4.3 covering any accident arising as a result of the presence of
CBL/OP and CBL/OP's agents, consultants, contractors and representatives on the
Real Property and deliver a certificate of insurance verifying such coverage to
13
Property Owner prior to any entry upon the Real Property (such insurance policy
maintained by or on behalf of CBL/OP shall insure the contractual liability of
CBL/OP covering the indemnities herein and shall (i) name the Property Owner and
Property Owner's Property Manager as additional insureds, (ii) contain a
cross-liability provision, and (iii) contain a provision that "the insurance
provided by CBL/OP hereunder shall be primary and non-contributing with any
other insurance available to Property Owner"); (f) promptly pay when due the
costs of all tests, investigations, studies and examinations done with regard to
the Property; (g) not permit any liens to attach to the Property by reason of
the exercise of CBL/OP's rights hereunder and promptly remove or cause to be
removed (by bonding or otherwise) any such liens which attach to the Property;
(h) fully restore the Real Property and the Personal Property to the condition
in which the same was found before any such inspections, tests or studies were
undertaken; provided that CBL/OP shall have no obligation to remediate any
hazardous materials on the Property except to the extent CBL/OP introduced the
same onto the Property or exacerbated any pre-existing hazardous materials
condition at the Property; (i) comply with the confidentiality standards set
forth in Section 4.2 above; and (j) comply with the terms and provisions of
Section 4.1 above.
4.4.2 CBL/OP's Indemnity. CBL/OP shall indemnify, defend, protect and hold
Property Owner and Property Owner's respective agents, advisors, employees and
contractors harmless from and against any and all liens, claims, losses,
liabilities, damages, costs, causes of action and expenses (including reasonable
attorneys' fees and court costs) (collectively, "Claims") arising out of (a)
CBL/OP's negligence or willful misconduct or the negligence or willful
misconduct of CBL/OP's agents, advisors, employees and contractors in CBL/OP's
investigations, inspections, tests and studies of the Property and/or the
Property Records, and (b) any violation by CBL/OP or CBL/OP's agents or
representatives of the provisions of this Article IV, excluding, however, any
Claims arising from the sole negligence or intentional misconduct of a person to
be indemnified hereunder. Notwithstanding any provision to the contrary
contained in this Agreement, CBL/OP's obligations set forth in Sections 4.2.3
and 4.2.4 above and CBL/OP's indemnity set forth in this Section 4.4.2 shall
survive the Closing or earlier termination of this Agreement.
4.4.3 CBL/OP's Insurance. CBL/OP shall deliver to Property Owner a certificate
of insurance providing the following: (a) commercial general liability insurance
insuring Property Owner for bodily injury, property damage and personal injury
liability, each with a limit liability of $3,000,000 for each occurrence and in
the aggregate, (b) in like amount covering CBL/OP's contractual liability under
the aforesaid hold harmless provision, and automobile liability insurance limits
for each occurrence of not less than $1,000,000 with respect to personal injury
or death and $500,000 with respect to property damage, and (c) workers
compensation insurance or similar insurance in form and in amounts required by
law.
4.5 Intentionally omitted.
4.6 CBL/OP Deliveries Upon Termination. If this Agreement is terminated pursuant
to any of the applicable terms hereof for any reason other than a default
solely on the part of Property Owner, (i) the provisions of Section 4.1.2 shall
survive such termination for a period of one year and (ii) CBL/OP covenants and
agrees to deliver to Property Owner no later than 5 Business Days following the
date of such termination the originals of all Property Records, if any,
delivered to CBL/OP by or on behalf of Property Owner. In addition to any other
14
remedies available to Property Owner, Property Owner shall have the right to
seek equitable relief (including specific performance) against CBL/OP and
CBL/OP's representatives to enforce the provisions of this Section 4.6.
4.7 Cancellation of Service Contracts. Subject to the Tenant Prospect Commission
Obligations as set forth below, Property Owner shall terminate effective as of
the Closing that certain leasing and management agreement dated July 1, 2000,
between Property Owner and Property Owner's Property Manager (the "Property
Management Agreement") and any other existing leasing listing agreement entered
into by Property Owner for the Real Property. Property Owner shall give notice
of cancellation of all Service Contracts except those identified on Exhibit J
attached hereto, which notice of termination by Property Owner shall be
effective as of the Closing and conditional upon the Closing taking place in a
timely manner in accordance with this Agreement. Property Owner and CBL/OP
agree as follows with respect to the cancellation fees, penalties, damages or
payments, if any, required to be paid for the cancellation of any Service
Contracts: (a) CBL/OP shall pay any cancellation fee, penalty, damages or
payment (other than the Tenant Prospect Commission Obligations) required for
the cancellation of any Service Contract (other than the Property Management
Agreement or any other existing leasing listing agreement entered into by
Property Owner for the Real Property) in accordance with CBL/OP's request; (b)
Property Owner shall pay any cancellation fee, penalty, damages or payment
required for the cancellation of the Property Management Agreement or any other
existing leasing listing agreement entered into by Property Owner with respect
to the Real Property, and (c) CBL/OP shall be responsible for the obligations
of Property Owner pursuant to the Property Management Agreement to pay, or
reimburse Property Owner for the payment of, a leasing commission to Property
Owner's Property Manager if following the termination of the Property
Management Agreement a lease is entered into with a party identified as a
prospective tenant, and disclosed in writing to CBL/OP at least 5 days prior to
the Closing Date, with whom Property Owner and/or Property Owner's Property
Manager had been negotiating prior to the termination of the Property
Management Agreement (the "Tenant Prospect Commission Obligations").
Notwithstanding anything to the contrary contained herein, Property Owner's
cancellation of any Service Contract (other than the Property Management
Agreement with Property Owner's Property Manager or any existing leasing
listing agreement entered into by Property Owner for the Real Property) shall
not be a condition to Closing or CBL/OP's obligations hereunder. At the
Closing, Property Owner shall terminate all Service Contracts other than those
identified on Exhibit J attached hereto. CBL/OP acknowledges that,
notwithstanding the foregoing, Property Owner shall have no obligation to
terminate and CBL/OP shall assume at Closing the Tenant Prospect Commission
Obligations of Property Owner pursuant to the Property Management Agreement.
ARTICLE V
ESCROW AND CLOSING
5.1 Escrow.
5.1.1 Opening of Escrow. Property Owner and CBL/OP shall open an escrow (the
"Escrow") with Escrow Agent for the consummation of the transaction contemplated
by this Agreement by delivering copies of this Agreement executed by the parties
to Escrow Agent at the Escrow Agent's address specified in Section 1.6 above.
15
Upon receipt of this Agreement executed by the parties, Escrow Agent shall (a)
execute and date the Joinder by Escrow Agent attached hereto solely in order to
evidence Escrow Agent's agreement to act as Escrow Agent in accordance with the
terms and provisions of this Agreement, (b) immediately notify Property Owner
and CBL/OP in writing by facsimile of the date Escrow Agent has executed the
attached Joinder by Escrow Agent and (c) immediately deliver to Property Owner
and CBL/OP by overnight courier ink-signed originals of this Agreement fully
executed in counterpart by Property Owner, CBL/OP and Escrow Agent.
5.1.2 Escrow Instructions. This Agreement, together with such supplementary or
further escrow instructions as Property Owner, and CBL/OP shall provide to
Escrow Agent by written agreement, shall constitute the instructions to Escrow
Agent for the Escrow. Property Owner, and CBL/OP hereby authorize their
respective attorneys to execute and deliver to Escrow Agent any additional or
supplementary instructions as may be necessary or convenient to close the
transaction contemplated hereby. Property Owner and CBL/OP also agree to
execute, if necessary, Escrow Agent's standard or pre-printed escrow
instructions but only to the extent such standard or pre-printed escrow
instructions are consistent with this Agreement (including Escrow Agent's duties
contained herein) and are reasonably acceptable to Property Owner and CBL/OP.
Any such additional or supplementary instructions and/or any pre-printed or
standard instructions shall not supersede or conflict with this Agreement, and
any such conflict shall be governed by the terms of this Agreement.
5.1.3 Closing. As used in this Agreement, the "Closing" shall mean the
consummation of the purchase and sale transaction contemplated by this
Agreement, as evidenced by the recordation of the Special Warranty Deeds in the
Official Records. Each party shall timely deposit with Escrow Agent the funds,
documents and supplementary written escrow instructions required by this
Agreement in order to consummate the Closing of the sale and transfer of the
Property in accordance with this Agreement.
5.1.4 Closing Date. The Closing shall occur through Escrow on the Closing Date.
Property Owner and CBL/OP acknowledge and agree that time is expressly of the
essence with respect to the Closing Date specified in Section 1.5, and except as
otherwise provided in Sections 4.3.6 and Section 10.2, the failure of either
party to timely perform such party's obligations by such Closing Date shall
constitute a material breach of this Agreement.
5.2 Conditions Precedent to the Closing for the Benefit of CBL/OP. The Closing
and CBL/OP's obligation to consummate the transaction contemplated by this
Agreement are subject to the timely satisfaction or written waiver of the
following conditions precedent for CBL/OP's benefit set forth below in this
Section 5.2. The conditions precedent set forth below in Section 5.2.3 through
Section 5.2.12 are referred to as the "CBL/OP Closing Conditions." The CBL/OP
Closing Conditions must be satisfied or waived no later than the Closing Date.
5.2.1 Intentionally omitted.
5.2.2 Intentionally omitted.
5.2.3 Property Owner's Deliveries. On or before the Closing Date, Property
Owner shall have delivered to Escrow Agent the documents described in
Section 5.4 below.
16
5.2.4 Representations and Warranties. All representations and warranties of
Property Owner contained in Section 7.1 of this Agreement shall be true and
correct in all material respects as of the date made and as of the Closing Date
with the same effect as if those representations and warranties were made at and
as of the Closing Date and Property Owner shall have delivered to CBL/OP a
certificate, dated as of the Closing Date, confirming (without material
exception or qualification) that all of the representations and warranties of
Property Owner contained in this Agreement, are true and correct in all material
respects as of the Closing Date as if made on and as of the Closing Date (the
"Property Owner's Closing Certificate"). If the Property Owner's Closing
Certificate shall contain any material exception or qualification, then this
condition shall not be deemed satisfied to such effect. Notwithstanding the
foregoing, it is agreed that any change in the physical condition of the Real
Property after the Final Approval Date shall not constitute material exceptions
or qualifications for the purposes of this condition. Nothing set forth in this
Section shall be deemed to modify the provisions of Article XI.
5.2.5 Covenants. As of the Closing Date, Property Owner shall have performed all
material covenants and/or agreements to be performed by Property Owner under
this Agreement and Property Owner shall not be in material default in the
performance of any material covenant or agreement to be performed by Property
Owner under this Agreement.
5.2.6 Intentionally Omitted
5.2.7 Condemnation or Casualty. CBL/OP shall not have terminated this Agreement
by reason of the condemnation of a Material Portion of the Property in
accordance with Section 11.1 below and CBL/OP shall not have terminated this
Agreement by reason of Material Damage to the Real Property in accordance with
Section 11.3 below.
5.2.8 Title Policy. As of the Closing Date, the Title Company shall have issued
or irrevocably committed to issue the Title Policy to CBL/OP as provided in
Section 4.3.6 above.
5.2.9 Intentionally Omitted.
5.2.10 Intentionally Omitted.
5.2.11 Intentionally Omitted.
5.2.12 Simultaneous Closings Under Other Mall Contracts. The transactions
contemplated under the Other Mall Contracts shall close simultaneously with the
Closing hereunder, except this shall not be a CBL/OP Closing Condition if the
closing under the Other Mall Contracts shall fail to occur by reason of the
default of CBL/OP, and in such case, the provisions of Section 2.3.2 shall
apply.
CBL/OP shall not willfully or in bad faith act or willfully or in bad
faith fail to act for the purpose of permitting any CBL/OP Closing Condition to
fail. In the event any of the foregoing CBL/OP Closing Conditions are not
satisfied (or otherwise waived by CBL/OP) on the Closing Date for any reason
other than a default by Property Owner or CBL/OP hereunder, and such failure of
condition is not remedied within 10 days after notice to Property Owner of such
failure of condition, this Agreement shall terminate, the Letter of Credit or
the Deposit, as applicable, shall be returned to CBL/OP and neither party shall
17
have any further rights or obligations under this Agreement, except for the
CBL/OP's Surviving Obligations; in the event the failure of any CBL/OP Closing
Condition is also a default by Property Owner, the provisions of Section 10.2
shall govern; and in the event the failure of any CBL/OP Closing Condition is
also a default by CBL/OP, the provisions of Section 10.1 shall govern. CBL/OP
shall at all times prior to the termination of this Agreement have the right to
waive any of the CBL/OP Closing Conditions. Except for those deemed waivers due
to CBL/OP's failure to timely deliver a notice of objection or termination, any
such waiver shall be in writing. Furthermore, the election by CBL/OP to proceed
with the Closing and the disbursement of the Purchase Price shall be deemed
CBL/OP's waiver of any CBL/OP Closing Condition to the extent any such CBL/OP
Closing Condition has not been previously satisfied or waived.
5.3 Conditions Precedent to the Closing for the Benefit of Property Owner. The
Closing and Property Owner's obligations with respect to the transaction
contemplated by this Agreement are subject to the timely satisfaction or
written waiver by the respective dates designated below of the following
conditions precedent for Property Owner's benefit set forth below in this
Section 5.3. The conditions precedent set forth below in this Section 5.3 are
referred to collectively as the "Property Owner's Conditions Precedent" and
individually as a "Property Owner's Condition Precedent."
5.3.1 CBL/OP's Deliveries. On or before the Closing Date, CBL/OP shall have
delivered to Escrow Agent all of the funds and documents as provided in Section
Section 3.7 and in Section 5.6 of this Agreement.
5.3.2 Intentionally omitted.
5.3.3 Covenants. As of the Closing Date, CBL/OP shall have performed all
material covenants and/or agreements to be performed by CBL/OP under this
Agreement and CBL/OP shall not be in default in the performance of any material
covenant or agreement to be performed by CBL/OP under this Agreement.
5.3.4 Title Policy. As of the Closing Date, the Title Company shall have issued
or irrevocably committed to issue the Title Policy to CBL/OP and/or CBL/OP,
subject to the limitations provided in Section 4.3.6 above.
5.3.5 Representations and Warranties. All representations and warranties of
CBL/OP contained in Section 7.6 of this Agreement shall be true and correct in
all material respects as of the date made and as of the Closing Date with the
same effect as if those representations and warranties were made at and as of
the Closing Date and CBL/OP shall have delivered to Property Owner a
certificate, dated as of the Closing Date, confirming (without material
exception or qualification) that all of the representations and warranties of
CBL/OP contained in this Agreement, are true and correct in all material
respects as of the Closing Date as if made on and as of the Closing Date (the
"CBL/OP Closing Certificate"). If the CBL/OP Closing Certificate shall contain
any material exception or qualification, then this condition shall not be deemed
satisfied to such effect.
5.3.6 Intentionally Omitted.
5.3.7 Intentionally Omitted .
18
5.3.8 Simultaneous Closings Under Other Mall Contracts. The transactions
contemplated under the Other Mall Contracts shall close simultaneously with the
Closing hereunder, except this shall not be a Property Owner Closing Condition
if the closing under the Other Mall Contracts shall fail to occur by reason of
the default of Property Owner or the contributors thereunder, and in such case,
the provisions of Section 2.3.2 shall apply.
Property Owner shall not willfully or in bad faith act or willfully or in bad
faith fail to act for the purpose of permitting any Property Owner Condition
Precedent to fail. In the event any of the foregoing Property Owner Conditions
Precedent are not satisfied (or otherwise waived by Property Owner) by the
respective dates designated above in this Section 5.3 for any reason other than
a default by CBL/OP or Property Owner hereunder, this Agreement shall terminate,
the Letter of Credit or the Deposit, as applicable, shall be returned to CBL/OP
and neither party shall have any further rights or obligations under this
Agreement, except for the CBL/OP's Surviving Obligations; in the event the
failure of any CBL/OP Closing Condition is also a default by Property Owner, the
provisions of Section 10.2 shall govern; and in the event the failure of any
CBL/OP Closing Condition is also a default by CBL/OP, the provisions of Section
10.1 shall govern. Property Owner shall at all times prior to the termination of
this Agreement have the right to waive any of the Property Owner Conditions
Precedent. Any such waiver shall be in writing; provided, however, the election
by Property Owner to proceed with the Closing and the recording of the Special
Warranty Deed shall be deemed Property Owner's waiver of any Property Owner
Condition Precedent to the extent any such Property Owner Condition Precedent
has not been previously satisfied or waived.
5.4 Property Owner's Deliveries. On or prior to the Closing Date, Property Owner
shall make the following deliveries to Escrow Agent:
5.4.1 Special Warranty Deed. Property Owner shall deliver a special warranty
deed in the form attached as Exhibit C hereto (the "Special Warranty Deed"),
executed and acknowledged by Property Owner, conveying the Real Property to
CBL/OP subject to the Permitted Exceptions, to all matters of record, and to
such facts as would be disclosed by an accurate survey.
5.4.2 Intentionally Omitted
5.4.3 Xxxx of Sale and General Assignment. Property Owner shall deliver two
counterpart originals of a xxxx of sale and general assignment in the form
attached as Exhibit E hereto (the "Xxxx of Sale and General Assignment"),
executed by Property Owner.
5.4.4 Non-Foreign Certificate. Property Owner shall deliver two counterpart
originals of a certification from Property Owner as required by the Foreign
Investors Real Property Tax Act, as amended, in the form attached as Exhibit F
hereto (the "FIRPTA Certificate"), executed by Property Owner.
5.4.5 Intentionally Omitted
5.4.6 Intentionally Omitted
19
5.4.7 Closing Statement. Property Owner shall join with CBL/OP in delivering a
Closing Statement (defined hereinafter) reflecting the consideration paid at
Closing, with all adjustments as set forth herein, and all other costs of the
transaction that are customarily included on closing statements in the state
wherein the Property is located and pay any such net amount owing at Closing
after taking into account the credits and prorations set forth on the Proration
and Expense Schedule (as defined hereinafter).
5.4.8 Authority. Property Owner shall deliver evidence of the existence,
organization and authority of Property Owner and of the authority of the person
executing documents on behalf of Property Owner which evidence shall be subject
to the reasonable approval of CBL/OP.
5.4.9 Intentionally Omitted;
5.4.10 Intentionally Omitted.
5.4.11 Intentionally Omitted
5.4.12 Intentionally Omitted.
5.4.13 Original Documents. Property Owner shall deliver to CBL/OP the original
Service Contracts that CBL/OP has elected to assume pursuant to Section 4.7
above and licenses and permits, if any, assigned to CBL/OP and in the possession
of Property Owner or Property Owner's agents or Property Owner's Property
Manager, together with such leasing and property files and records which are
material in connection with the continued operation, leasing and maintenance of
the Property and the Books and Records.
5.4.14 Possession. Property Owner shall deliver possession and occupancy of the
Property together with any keys, electronic pass cards or devices (to the extent
in Property Owner's possession or control) to all entrance doors and doors to
equipment and utility rooms and vault boxes located in or related to the
Property.
5.4.15 Contract Termination. Property Owner shall deliver to CBL/OP such
evidence satisfactory to CBL/OP that the Property Management Agreement has been
terminated, and copies of all correspondence sent and received by Property Owner
relating to the termination of those Service Contract that CBL/OP has not agreed
to assume.
5.4.16 Intentionally Omitted
5.4.17 Intentionally Omitted.
5.4.18 Intentionally Omitted
5.4.19 Owner's Affidavit. The general partner of the Property Owner
shall deliver an Owner's Affidavit which shall be substantially in the form
attached hereto as Exhibit S.
5.4.20 Other Documents. Property Owner shall deliver such other documents as may
be reasonably required by Escrow Agent or the Title Company (provided, however,
no such
20
additional document shall expand any obligation, covenant, representation or
warranty of Property Owner or result in any new or additional obligation,
covenant, representation or warranty of Property Owner under this Agreement
beyond those expressly set forth in this Agreement).
5.5 Existing Property Owner Debt. Property Owner shall be responsible for any
prepayment penalties or other prepayment amounts owing to its current lender in
connection with the payment of its existing debt and described on Schedule II
hereof ("Existing Property Owner Debt").
5.6 CBL/OP's Deliveries. Prior to the Closing Date, CBL/OP shall deliver to
Escrow Agent the following:
5.6.1 Funds. The Purchase Price, plus all net prorations, closing costs and
other funds required to be paid or provided by CBL/OP under this Agreement (all
monies CBL/OP is required to deliver shall be delivered by wire transfer of
immediately available funds to the account designated by Escrow Agent on the
Business Day immediately preceding the Closing Date so that the Closing may
occur and Escrow Agent will be able to disburse good funds to Property Owner no
later than 1:00 p.m. on the Closing Date).
5.6.2 Intentionally Omitted
5.6.3 Xxxx of Sale and General Assignment. CBL/OP shall deliver two
counterpart originals of the Xxxx of Sale and General Assignment, executed
by CBL/OP_;
5.6.4 Closing Statement. Join with Property Owner in delivering a Closing
Statement reflecting the consideration paid at Closing, with all adjustments as
set forth herein, and all other costs of the transaction that are customarily
included on closing statements in the state wherein the Property is located and
pay any such net amount owing at Closing after taking into account the credits
and prorations set forth on the Proration and Expense Schedule.
5.6.5 CBL/OP Closing Certificate. CBL/OP shall deliver to Property Owner the
CBL/OP Closing Certificate.
5.6.6 Authority. Evidence of the existence, organization and authority of CBL/OP
and of the authority of the persons executing documents on behalf of CBL/OP
reasonably satisfactory to the Title Company.
5.6.7 Other Documents. Such other documents as may be reasonably required by
Escrow Agent, Property Owner or the Title Company (provided, however, no such
additional document shall expand any obligation, covenant, representation or
warranty of CBL/OP or result in any new or additional obligation, covenant,
representation or warranty of CBL/OP under this Agreement beyond those expressly
set forth in this Agreement).
5.7 Intentionally Omitted.
5.8 Closing Costs.
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5.8.1 Property's Owner's Closing Costs. Property Owner shall pay (a) the portion
of the premium for the Title Policy attributable to an ALTA Standard Coverage
Title Policy (as well as any endorsements which Property Owner agrees to have
issued to cure a Title Objection), (b) all legal and professional fees and fees
of other consultants incurred by Property Owner, (c) Intentionally Omitted, (d)
one-half of all Escrow fees and Escrow costs related to the sale of the Property
to CBL/OP (as opposed to any Escrow fees and Escrow costs related to any
financing obtained by CBL/OP which shall be paid by CBL/OP), (e) the payment to
Property Owner's Broker as provided in Section 5.9 below, and (f) any
pre-payment penalties or yield maintenance charges payable on any indebtedness
of Property Owner that is not a Permitted Exception.
5.8.2 CBL/OP's Closing Costs. CBL/OP shall pay (a) the excess portion of the
premium for the Title Policy attributable to an ALTA Extended Coverage Title
Policy (if the Title Policy is an ALTA Extended Coverage Title Policy), (b) the
cost of any endorsements to the Title Policy requested by CBL/OP (if the Title
Policy includes any endorsements) other than any endorsements which Property
Owner agrees to cause to be issued to cure a Title Objection, (c) any cost of
obtaining the Updated Survey, (d) the county and city transfer/recording taxes,
if any, assessed on the recording of the Special Warranty Deed conveying the
Property to CBL/OP, (e) all legal and professional fees and fees of other
consultants incurred by CBL/OP, (f) any and all Escrow fees and costs and any
other costs and expenses whatsoever related to any financing obtained by CBL/OP,
(g) all recording fees and charges, (h) one-half of all Escrow fees and Escrow
costs related to the sale of the Property to CBL/OP, and (i) all fees, costs,
charges, points, title insurance premiums, recording fees, mortgage registration
taxes for any financing obtained by CBL/OP and other costs and expenses incurred
in connection with the such financing.
5.8.3 General Allocation. Any other closing costs and expenses which are not
addressed in Section 5.8.1 and Section 5.8.2 above shall be allocated between
CBL/OP and Property Owner in accordance with the customary practice in the
jurisdiction in which the Property is located.
5.9 Real Estate Commissions. Property Owner shall be responsible for any
commission, fee or other payment which may be due to Eastdil Realty Company,
L.L.C., a New York limited liability company ("Property Owner's Broker") at
Closing in connection with the transactions contemplated by this Agreement.
Except for any commission that may be payable to Property Owner's Broker as set
forth above, each party hereto hereby represents and warrants to the other
party that no real estate brokerage commission is payable to any person or
entity in connection with the transaction contemplated herein based upon any
dealings or actions by the party making such representation. Each party further
agrees to and shall indemnify, protect, defend and hold the other party
harmless from and against the payment of any commission to any person or entity
claiming by, through or under the indemnifying party. This indemnification
shall extend to any and all claims, liabilities, costs, losses, damages, causes
of action and expenses (including reasonable attorneys' fees and court costs)
arising as a result of such claims and shall survive the Closing or any
termination of this Agreement.
5.10 Real Estate Reporting Person. Escrow Agent is hereby designated the "real
estate reporting person" for purposes of Section 6045 of Title 26 of the United
22
States Code and Treasury Regulation 1.6045 4 and any settlement statement
prepared by the Title Company shall so provide. Upon the Closing, CBL/OP and
Property Owner shall cause Escrow Agent to file a Form 1099 information return
and send the statement to each party as required under the aforementioned
statute and regulation.
5.11 Post-Closing Access to Records. CBL/OP, Property Owner, and Property
Owner's Property Manager shall cooperate with each other after Closing in case
of either's need in response to any legal requirement, regulatory audit
requirement, tax audit, tax return preparation or litigation threatened or
brought against either the CBL/OP or Property Owner or other legitimate
business reason, by allowing the other party and its agents or representatives
access, upon reasonable advance notice (which notice shall identify the nature
of the information sought by such party), at reasonable times to examine and
make copies of any and all instruments, files and records pertaining to the
Property with respect to any period of time prior to the Closing (including the
Books and Records), which right shall survive Closing for a period of 7 years.
5.12 SEC Reporting Requirements. For the period commencing on the Execution Date
and continuing through the first anniversary of the Closing Date, and without
limitation of other document production otherwise required of Property Owner's
Property Manager hereunder, Property Owner shall, or shall cause Property
Owner's Property Manager to, from time to time, upon reasonable advance written
notice from CBL/OP, provide CBL/OP and its representatives with (i) all
financial, leasing and other information pertaining to the period of Property
Owner's ownership and operation of the Property that is relevant and reasonably
necessary, in the opinion of CBL/OP's outside, third party accountants (the
"Accountants"), to enable CBL/OP and its Accountants to prepare financial
statements and conduct audits of such financial statements in accordance with
generally accepted auditing standards such that CBL/OP shall be in compliance
with any or all of (a) Rule 3-05 (but only to the extent such Rule 3-05
references Rule 3-14 of Regulation S-X of the regulations of the Securities and
Exchange Commission (the "Commission")) and Rule 3-14 of Regulation S-X of the
regulations of the Commission, as applicable; (b) any other rule issued by the
Commission and applicable to CBL/OP; and (c) any registration statement, report
or disclosure statement filed with the Commission by or on behalf of CBL/OP;
and (ii) a representation letter, signed by the individual(s) responsible for
Property Owner's financial reporting, in the form prescribed by generally
accepted auditing standards promulgated by the Auditing Standards Division of
the American Institute of Certified Public Accountants, if such representation
letter is required by the Accountants to render an opinion concerning Property
Owner's financial statements.
ARTICLE VI
PRORATIONS
6.1 General. The following items set forth below in this Article VI are to be
adjusted and prorated between Property Owner and CBL/OP as of 12:01 a.m. on the
Closing Date (the "Adjustment Time"). All prorations shall be calculated as if
the Property had been sold by Property Owner to CBL/OP on the Closing Date such
that CBL/OP shall be deemed to own the Property, and therefore entitled to any
revenues and responsible for any expenses, for the entire day upon which the
Closing occurs). Such adjustments and prorations shall be calculated on the
actual days of the applicable month and all annual prorations shall be based
upon a 365 day year. The net amount resulting from the prorations and
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adjustments provided for in this Article VI (along with the allocation of
Closing costs in accordance with Section 5.8 above) shall be added to (if such
net amount is in Property Owner's favor) or deducted from (if such net amount
is in CBL/OP's favor) the amount of the Purchase Price.
6.2 Real Estate Taxes. Real estate or ad valorem real property taxes,
assessments (including installments of business improvement district charges
and principal and interest installments due on any local improvement district
liens, if any) and personal property taxes with respect to the Property
(collectively, "Real Estate Taxes") shall be prorated based upon the latest
available tax xxxx, such that Property Owner shall be responsible for all Real
Estate Taxes levied against the Property for the period prior to the Adjustment
Time and CBL/OP shall be responsible for all Real Estate Taxes levied against
the Property for the period from and after the Adjustment Time. If the latest
available tax xxxx is not the xxxx for the current tax year, then Real Estate
Taxes shall be prorated based upon the latest tax information then available
(including previous tax bills, current assessments and other information
available from the taxing authorities) and CBL/OP and Property Owner shall
re-prorate the Real Estate Taxes following the Closing as soon as the current
tax xxxx or other current information becomes available. Any increase in Real
Estate Taxes which is assessed following the Closing arising out of the sale of
the Real Property to CBL/OP or a subsequent sale or change in ownership
thereafter, and/or arising out of any construction or improvements to the Real
Property prior to or following the Closing, shall be paid by CBL/OP when
assessed. Refunds of Real Estate Taxes for the Real Estate Tax year in which
the Closing occurs, net of the costs of pursuing any tax contest or protest
proceedings and collecting such refunds, shall be prorated in proportion to the
respective shares of such Real Estate Taxes borne by Property Owner and CBL/OP
hereunder. Notwithstanding any statement herein to the contrary, the parties
agree that taxes shall be prorated on the basis that Property Owner is
responsible for taxes and assessments relating to periods prior to the Closing
and CBL/OP is responsible for taxes and assessments relating to periods from
the Closing and thereafter, and the parties further agree that this tax
proration shall apply regardless of whether the taxing authority assesses taxes
in arrears, currently or prospectively.
6.3 Operating Expenses. As used herein, "Operating Expenses" means all fees and
charges for sewer, water, electricity, heat and air-conditioning service and
other utilities; common area maintenance charges; rental taxes, personal
property taxes, business occupational taxes and municipal taxes other than Real
Estate Taxes; landlord's contributions to merchant or project associations or
to promotional funds; periodic charges payable under Service Contracts assigned
to and assumed by CBL/OP; periodic fees payable under transferable licenses and
permits for the operation (as opposed to the construction) of the Property; and
any other costs and expenses with respect to the operation and maintenance of
the Property. Subject to the provisions of Section 6.4.3 below, Operating
Expenses shall be prorated as of the Adjustment Time such that Property Owner
shall be responsible for all Operating Expenses attributable on an accrual
basis to the period prior to the Adjustment Time and CBL/OP shall be
responsible for all Operating Expenses attributable on an accrual basis to the
period from and after the Adjustment Time. If invoices or bills for any of such
costs and expenses are unavailable on or before the Closing Date, such costs
and expenses shall be estimated and prorated at Closing based upon the latest
information available (including prior bills and operating history) and a final
and conclusive readjustment of any cost and expense item shall be made upon
receipt of the actual invoice or xxxx, but in all events no later than 90 days
24
following the Closing. CBL/OP shall take all steps necessary to effectuate the
transfer of all utilities to CBL/OP's name as of the date of Closing, and where
necessary, open a new account in CBL/OP's name and post deposits with the
utility companies. CBL/OP and Property Owner's Property Manager shall cooperate
to have all utility meters read by the appropriate utility companies as of the
date of Closing. If CBL/OP and Property Owner's Property Manager are unable to
obtain final meter readings as of the Closing Date from all applicable meters,
such expenses shall be estimated at Closing based upon the operating history of
the Property subject to the final adjustment in all events no later than 90
days following the Closing as provided above in this Section 6.3. Property
Owner shall be entitled to recover any and all deposits held by any utility
companies as of the date of Closing, and if any such deposits are not returned
to Property Owner on or before the Closing Date and are assigned to CBL/OP,
such amounts shall be credited to Property Owner's account and increase the
amount of funds payable by CBL/OP at Closing.
6.4 Intentionally Omitted.
6.5 Intentionally Omitted.
6.6 Intentionally Omitted.
6.7 Intentionally Omitted.
6.8 Intentionally Omitted.
6.9 Adjustment Procedure. Not less than two Business Days prior to the Closing
Date, Property Owner and CBL/OP shall agree upon a schedule of the allocation
of costs and expenses to be made in accordance with Section 5.9 above and the
prorations to be made in accordance with this Article VI (the "Proration and
Expense Schedule"), which Proration and Expense Schedule shall be executed by
Property Owner and CBL/OP, become a schedule to the closing statement described
in Sections 5.4.7 and 5.6.4 (the "Closing Statement") and utilized for purposes
of making the adjustments to the Purchase Price at Closing for closing costs
and prorations. As soon as practicable following the Closing (but in no event
later than the first anniversary of the Closing, except that with respect to
Real Estate Taxes, in no event later than fifteen (15) business days after
receipt of the actual tax xxxx attributable for the calendar year 2005),
Property Owner and CBL/OP shall reprorate the income and expenses set forth in
this Article VI based upon actual bills or invoices received after the Closing
(if original prorations were based upon estimates) and any other items
necessary to effectuate the intent of the parties that all income and expense
items be prorated as provided above in this Article VI. Any reprorated items
shall be promptly paid to the party entitled thereto. Any payment by the
Property Owner to CBL/OP pursuant to the preceding sentence shall be in cash.
Any errors or omissions in computing adjustments at the Closing shall be
promptly corrected, provided that the party seeking to correct such error or
omission shall have notified the other party of such error or omission no later
than the first anniversary of the Closing. The provisions of this Article VI
shall survive the Closing.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1 Representations and Warranties of Property Owner. As a material inducement
to CBL/OP entering into this Agreement and consummating the transactions
contemplated hereby, Property Owner hereby makes the following representations
and warranties to CBL/OP as of the Effective Date, subject to the terms set
forth herein and subject to the items set forth on Schedule 7.1 attached hereto
and made a part hereof (the "Disclosure Schedule"):
7.1.1 Power and Authority of Property Owner. Property Owner has the right, power
and capacity to execute, deliver and perform this Agreement and to consummate
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Property Owner and constitutes Property Owner's legal,
valid and binding obligation, enforceable in accordance with its terms (except
as may be limited by applicable bankruptcy, insolvency, moratorium and other
principles relating to or limiting the right of contracting parties generally).
The execution, delivery and performance of this Agreement has been duly and
validly authorized by Property Owner. The execution, delivery and performance by
Property Owner of this Agreement and the consummation of the transactions
contemplated hereby will not, with or without the giving of notice or the lapse
of time, or both, (i) violate any provision of law, statute, rule or regulation
to which such Property Owner is subject, (ii) violate any order, judgment or
decree applicable to Property Owner, (iii) violate, conflict with, or result in
a breach or default under, or cause the termination of, any term or condition of
any court order, restriction, agreement, document or other instrument to which
Property Owner is a party or by which Property Owner may be bound, or (iv)
except as contemplated by this Agreement, result in the creation of any lien,
charge or encumbrance upon the Property or any part thereof.
7.1.2 Intentionally Omitted
7.1.3 Intentionally Omitted
7.1.4 [Intentionally Omitted].
7.1.5 Deliveries at Closing. All documents to be executed by Property Owner
which are to be delivered to CBL/OP at the Closing will be, duly authorized,
executed, and delivered by the Property Owner, will be legal, valid, and binding
obligations of Property Owner (except as limited by applicable bankruptcy,
insolvency, moratorium and other principles relating to or limiting the right of
contracting parties generally).
7.1.6 Requisite Action. All requisite action (corporate, trust, partnership or
otherwise) has been taken by Property Owner in connection with entering into
this Agreement, the instruments referenced herein, and the consummation of the
transaction contemplated hereby. No consent of any partner, shareholder,
trustee, trustor, beneficiary, creditor, investor, judicial or administrative
body, governmental authority or other party is required for Property Owner to
consummate the transactions contemplated by this Agreement, or if required, such
consent has been obtained.
26
7.1.7 Individuals Authority. The individuals executing this Agreement and the
instruments referenced herein on behalf of Property Owner have the legal power,
right, and actual authority to bind Property Owner to the terms and conditions
hereof and thereof.
7.1.8 Tenant Leases. There are no leases, occupancy agreements that encumber
the Property.
7.1.9 Contracts. Other than those which are cancelable on 30 days' notice
without payment of any fees, there are no service, supply, maintenance, repair,
construction or management contracts to which Property Owner is a party relating
to the Property which will be binding upon CBL/OP, or the Property following the
Closing, except as disclosed by the Title Documents and except as described in
Exhibit Z attached hereto.
7.1.10 Pending Actions. There is no pending (or to Property Owner's knowledge,
threatened) action, suit or proceeding before any court or other governmental
agency naming Property Owner as a party that arises out of Property Owner's
ownership of the Property (other than any pending proceeding to contest the Real
Estate Taxes assessment of the Property).
7.1.11 Governmental/Insurance Notices. Except as disclosed to CBL/OP in writing,
Property Owner has not received any written notice (a) from any city, county,
state or other governmental authority having jurisdiction over the Real Property
stating that the Real Property is in material violation of the laws, rules or
ordinances applicable to the Real Property including applicable parking ratios,
which violation has not been corrected prior to the Effective Date, or (b) from
Property Owner's insurance carriers regarding defects or material inadequacies
of all or any part of the Real Property or use or operation thereof, which
defects or inadequacies have not been corrected prior to the Effective Date.
7.1.12 Condemnation/Rezoning. Except as disclosed in the Title Documents or
otherwise disclosed to CBL/OP in writing, Property Owner has not received any
official notice from any governmental authority having jurisdiction over the
Real Property of (a) any actual or threatened condemnation of the Property or
any part thereof; or (b) any actual plan, study or effort to rezone the Real
Property or to widen, modify, regrade or realign any street or highway that
borders the Real Property. Except as set forth in the Property Records delivered
or made available to CBL/OP as provided in Section 4.2.1 above and except as
disclosed to CBL/OP in writing, Property Owner has not been served with any
complaint for any pending eminent domain proceeding with respect to the
Property.
7.1.13 Environmental Law Violations. Except as disclosed to CBL/OP in writing,
(a) Property Owner has not received any written notice of a material violation
of any federal, state, or local laws, ordinances, rules or regulations governing
the use, storage, treatment, transportation, generation or disposal of Hazardous
Substances with respect to the Real Property, and (b) to Property Owner's
knowledge, no person or entity has caused any Hazardous Substances to be
disposed of or released at the Real Property during Property Owner's period of
ownership of the Real Property, except for amounts of Hazardous Substances that
may be present in the ordinary course of the shopping center/retail business
conducted by Property Owner, or occupants of the Real Property or in the
ordinary course of the maintenance and operation of the Real Property.
27
7.1.14 Lease Brokerage. There are no lease brokerage agreements, leasing
commission agreements or other agreements providing for payments by Property
Owner or its successors or assigns of any amounts for leasing activities or
procuring tenants with respect to the Property including lease renewals,
expansions or modifications.
7.1.15 No Violations. To Property Owner's knowledge, (i) the Property is in
compliance with applicable fire, health, building, use, occupancy or zoning laws
(collectively, "Laws"), including but not limited to applicable parking ratios
and (ii) any work that is required by any Laws to be done upon or in connection
with the Property has been done except for such work that may remain outstanding
and, if unaddressed, would not have a material adverse effect on the use of the
Property as currently owned and operated.
7.1.16 Intentionally Omitted.
7.1.17 Taxes. To Property Owner's Knowledge, no application or
proceeding is pending seeking any increase or reduction in taxes or
assessments for the Property.
7.1.18 Financial/Operating Statements. The financial statements with respect to
the Property provided by Property Owner to CBL/OP (i) were materially accurate
as of the date and for the period(s) presented in such statements, and (ii)
accurately reflected the financial condition and results of operations of the
Property as of the period(s) presented.
7.1.19 Delivery of Environmental Reports and Property Condition Reports.
(i) Property Owner has delivered to CBL/OP or made available to CBL/OP all
environmental reports in the possession of Property Owner or Property Owners'
Property Manager (the "Existing Environmental Reports"). With respect to any
other environmental report not currently in Property Owner's possession, but
previously commissioned by or for the benefit of Property Owner or any lender to
Property Owner with respect to the Property or with respect to conditions that
may impact the Property (the "Prior Reports"), no such Prior Report contains
information which is materially inconsistent with the Existing Environmental
Reports.
(ii) Property Owner has delivered to CBL/OP or made available to CBL/OP all
reports in Property Owner's possession prepared within the five (5) year period
prior to the Effective Date that Property Owner has caused to be prepared or
that were prepared by or for any other person or entity with respect to the
Property or any portion of the Property that are in the nature of engineering
reports, reports of physical conditions of Improvements and/or any other reports
of other conditions at, on or impacting the Property that called for or
recommended repairs or capital expenditures in excess of $25,000.
7.1.20 Adjacent Property. Except for the property described in the Eastland
Contract, neither Property Owner nor any partner or affiliate of Property Owner
owns any interest in any real property that is adjacent to the Land or that is
within a one-mile radius of the Land.
7.1.21 Employees. Property Owner neither has, nor has ever had, any
employees.
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7.1.22 Intentionally Omitted.
7.2 Definition of Property Owner's Knowledge. For purposes of this Agreement,
whenever the phrase "to the knowledge of Property Owner" or words of similar
import are used, they shall be deemed to refer to the present actual (as
opposed to constructive or imputed) knowledge of either Xxxx Xxxxxxx or Xxxxx
Xxxxx, only, without any investigation or inquiry whatsoever by said
individuals. CBL/OP acknowledges that the individuals named above are named
solely for the purpose of defining and narrowing the scope of Property Owner's
knowledge and not for the purpose of imposing any liability on or creating any
duties running from such individual to CBL/OP. CBL/OP covenants that CBL/OP
will bring no action of any kind against such individual or any officer,
director, member, partner, shareholder, agent, representative, or advisor of
Property Owner in such capacity arising out of the representations and
warranties made by Property Owner in this Agreement.
7.3 Survival Period. The representations and warranties of Property Owner set
forth in Section 7.1 and the indemnification obligations under Section 10.4.2
shall survive until only the date which is one (1) year following the Closing
(the "Expiration Date") (other than those representations and warranties set
forth in Sections 7.1.1 through 7.1.7 and the indemnification obligations under
Section 10.4.2, but only to the extent the indemnification obligations cover
breaches of the representation and warranties set forth in Sections 7.1.1
through 7.1.7, which shall survive until the date which is five (5) years
following the Closing Date (the "Extended Expiration Date")) and shall
automatically expire upon the Expiration Date (or Extended Expiration Date, as
applicable) unless CBL/OP files a written claim against Property Owner with
respect to any alleged breach prior to the Expiration Date (or Extended
Expiration Date, as applicable) and commences suit within six (6) months
following the filing of such claim (and, in the event any such suit is timely
commenced by CBL/OP against Property Owner, shall survive thereafter only
insofar as the subject matter of the alleged breach specified in such suit is
concerned). If suit is not timely commenced by CBL/OP within the time period
stated above, then Property Owner's representations and warranties and
indemnifications obligations shall thereafter be void and of no force or
effect.
7.4 Third Party Information. Notwithstanding anything to the contrary contained
herein, and without limiting Article IX below, Property Owner shall not have
any liability, obligation or responsibility of any kind to CBL/OP, any of
CBL/OP's agents, members, partners, employees, representatives, related and
affiliated entities, successors and assigns, or any other party claiming by,
under or through CBL/OP (collectively, "CBL/OP Parties") with respect to the
following: (a) the content or accuracy of any report, study, opinion or
conclusion of any soils, toxic, environmental or other engineer or other person
or entity who has examined the Property or any aspect thereof; (b) the content
or accuracy of any information released to CBL/OP by an engineer or planner in
connection with the Property; (c) the availability of building or other permits
or approvals for the Property by any state or local governmental bodies with
jurisdiction over the Property; (d) any of the items delivered or made
available to CBL/OP pursuant to CBL/OP's review of the Property or the Property
Records or the condition of the Property which have been prepared by anyone
other than Property Owner (including any of the Title Documents); or (e) the
content or accuracy of any other development or construction cost, projection,
financial or marketing analysis given to CBL/OP by Property Owner or reviewed
by CBL/OP with respect to the Property; provided that, in each case stated
29
above, to the extent that Property Owner furnished or made available any
documents or materials to CBL/OP, Property Owner represents and warrants that,
to Property Owner's knowledge, such documents and materials are true and
correct copies of those documents and materials contained in Property Owner's
files. Under no circumstances whatsoever shall information possessed by or
known to any person or entity other than Property Owner (including Property
Owner's consultants, attorneys, agents and advisors or their respective
employees or representatives) be imputed or attributed to Property Owner.
7.5 CBL/OP's Knowledge. For purposes of this Agreement, whenever the phrase "to
the knowledge of CBL/OP" or "CBL/OP has actual knowledge" or words of similar
import are used, they shall be deemed to refer to the present actual (as
opposed to constructive or imputed) knowledge of Xxxxxxx Xxxxxxxx, Xxxxx
Xxxxxxx and/or Xxx Xxxxxxx without any investigation or inquiry whatsoever by
said individual. Property Owner acknowledges that the individual named above is
named solely for the purpose of defining and narrowing the scope of CBL/OP's
knowledge and not for the purpose of imposing any liability on or creating any
duties running from such individual to Property Owner. Property Owner covenant
that they will bring no action of any kind against such individual or any
officer, director, member, partner, shareholder, agent, representative, or
advisor of CBL/OP arising out of the representations and warranties made by
CBL/OP in this Agreement. Notwithstanding anything to the contrary contained in
this Agreement, Property Owner shall not have any liability, obligation or
responsibility of any kind to CBL/OP or any other CBL/OP Party with respect to
any representation or warranty contained in Section 7.1 above if, prior to the
Closing, CBL/OP has actual knowledge that such representation or warranty is
untrue or incorrect.
7.6 Representations and Warranties of CBL/OP. CBL/OP represents and warrants to
Property Owner that upon approval of CBL/REIT's Board of Directors as described
in Section 13.2 hereof, the following matters are true and correct as of the
Effective Date:
7.6.1 Legal Power. CBL/OP will have the legal power, right and authority to
enter into this Agreement and the instruments referenced herein, and to
consummate the transaction contemplated hereby.
7.6.2 Duly Authorized. This Agreement is, and all the documents executed by
CBL/OP which are to be delivered to Property Owner at the Closing will be, duly
authorized, executed, and delivered by CBL/OP, and is and will be legal, valid,
and binding obligations of CBL/OP (except as may be limited by applicable
bankruptcy, insolvency, moratorium and other principles relating to or limiting
the right of contracting parties generally).
7.6.3 Requisite Action. All requisite action (corporate, trust, partnership or
otherwise) has been taken by CBL/OP in connection with entering into this
Agreement and the instruments referenced herein and by the Closing all such
necessary action will have been taken to authorize the consummation of the
transaction contemplated hereby. By the Closing no additional consent of any
partner, shareholder, trustee, trustor, beneficiary, creditor, investor,
judicial or administrative body, governmental authority or other party shall be
required for CBL/OP to consummate the transaction contemplated by this
Agreement.
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7.6.4 Individuals Authority. The individuals executing this Agreement and the
instruments referenced herein on behalf of CBL/OP have the legal power, right,
and actual authority to bind CBL/OP to the terms and conditions hereof and
thereof.
ARTICLE VIII
OPERATING COVENANTS
Property Owner hereby agrees to the following covenants:
8.1 Insurance. Until the Closing, Property Owner shall keep the Property insured
against fire, vandalism and other loss, damage and destruction with the same
coverage, policy limits and deductible amounts as are currently maintained by
Property Owner.
8.2 Operation of Property. Until the Closing, Property Owner shall operate the
Property in the manner as Property Owner has previously done and Property Owner
shall maintain and repair the Property through the Closing in a manner
consistent with the manner in which Property Owner maintained and repaired the
Property prior to the date of this Agreement, subject to the limitations on
Property Owner's obligation to pay costs of repair and maintenance as set forth
in Section 8.3 below.
8.3 Capital Improvements. Subject to Property Owner's obligations under Section
8.2 above, from and after the Effective Date until the Closing, Property Owner
shall not undertake any capital improvements or material alterations or
renovations to the Real Property (including any which are recommended in any of
the Property Records delivered or made available to CBL/OP or in any of the
CBL/OP's Information), except as may be required under governmental
regulations, without the prior written consent of CBL/OP. To the extent
Property Owner is required (whether pursuant to Section 8.2, or under
governmental regulations) or Property Owner receives CBL/OP's consent, pursuant
to the foregoing sentence, to undertake any capital improvements or material
alterations to the Real Property, Property Owner shall not be required to pay
for capital improvements or maintenance and repair expenses in excess of One
Hundred Thousand Dollars ($100,000). If the aggregate amount incurred by
Property Owner for capital improvements under this Section 8.3 and maintenance
and repair expenses under the Section 8.2 above, exceeds One Hundred Thousand
Dollars ($100,000), provided the Closing occurs, CBL/OP shall reimburse
Property Owner at Closing for the amount so expended in excess of One Hundred
Thousand Dollars ($100,000); provided, further, that if the total reimbursement
required of CBL/OP pursuant to this provision shall exceed Nine Hundred
Thousand Dollars ($900,000), CBL/OP shall have the right to terminate this
Agreement by written notice to Property Owner, in which event the Letter of
Credit or the Deposit, as applicable, shall be returned to CBL/OP.
8.4 Leasing. From and after the Effective Date, Property Owner shall not enter
into any new leases or occupancy agreements for any portion of the Property
without the prior written consent of CBL/OP.
8.5 New Contracts. Except as permitted under the terms of this Agreement,
Property Owner shall not enter into any new contract or other agreement
affecting the Property (including but not limited to any transfer of any
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interest in the Property or placement or allowance of placement of any mortgage
or lien against the Property) which would survive the Closing; provided that no
consent of CBL/OP shall be required as to any proposed contract or other
agreement which is entered into in the course of Property Owner's ordinary
course of operating and maintaining the Property and which provides it is
terminable upon 30 days (or less) notice without premium or penalty payable by
CBL/OP.
8.6 Liens. From the Effective Date until Closing, except for the Permitted
Exceptions, Property Owner shall not create or consent to the creation of any
security interests, liens, easements or other title conditions affecting any
portion of the Property, without the prior written consent of CBL/OP, which
shall not be unreasonably withheld.
8.7 Intentionally Omitted
8.8 Transfers. From the Effective Date until Closing, Property Owner shall not
(i) other than due to a casualty, condemnation or as required by law, offer to
sell, or sell, mortgage, pledge, hypothecate or otherwise transfer or dispose
of all or any part of the Property or any interest therein, or (ii) list the
Property or any part thereof with any broker (other than extending the existing
listing with Property Owner's Broker) or otherwise offer or solicit offers for
the sale or transfer of the Property to any person or entity other than the
CBL/OP.
8.9 Litigation. From the Effective Date until Closing, Property Owner shall give
CBL/OP prompt notice of the institution of any litigation, arbitration or other
administrative proceeding of which Property Owner becomes aware involving the
Property or that could impact Property Owner's interest in the Property and
will allow CBL/OP, if requested by CBL/OP, to participate in any decision to
settle such matters and CBL/OP shall be entitled to approve or disapprove any
settlement of such matters that, in the case of any of the foregoing, may have
any material adverse impact on the Property following the Closing (it being
agreed that a settlement which merely requires the payment of money by Property
Owner and/or its insurers, and does not impose any future obligations
concerning operation of the Property will be deemed not to have a material
adverse impact on the Property following the Closing).
8.10 Schedule and Exhibit Updates. Property Owner shall notify CBL/OP of (i) any
circumstance known to Property Owner that would result in a change to any
Schedule or Exhibit or (ii) any discovery (or remembrance) of facts which would
render any Schedule or Exhibit inaccurate or incomplete within a reasonable
time following Property Owner's knowledge of the occurrence of such
circumstance or discovery of such facts.
8.11 Intentionally Omitted
8.12 Employees of the Property Owner. By the Closing Date, Property Owner hereby
covenants to terminate all of the employees employed by the Property Owner at
Property Owner's sole cost and expense; and shall pay, at Property Owner's sole
cost and expense, any and all wages, severances, bonuses, retirement packages
and other considerations that such terminated employees are entitled to
receive.
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ARTICLE IX
"AS-IS" SALE
9.1 Disclaimer of Representations and Warranties by Property Owner.
Notwithstanding anything contained in this Agreement to the contrary, except
for those representations and warranties expressly made by Property Owner in
Section 7.1 above, it is understood and agreed that neither Property Owner nor
any of Property Owner's respective agents, employees, contractors or
representatives, nor any other person purporting to act on behalf of Property
Owner, has made and is not now making, and CBL/OP has not relied upon and will
not rely upon (directly or indirectly), any warranties or representations of
any kind or character, express or implied, oral or written, past, present or
future, with respect to the Property, including warranties or representations
as to (a) matters of title, (b) environmental matters relating to the Property
or any portion thereof, (c) geological conditions, including subsidence,
subsurface conditions, water table, underground water reservoirs, limitations
regarding the withdrawal of water and earthquake faults and the resulting
damage of past and/or future earthquakes, (d) whether, and to the extent to
which, the Property or any portion thereof is affected by any stream (surface
or underground), body of water, flood prone area, flood plain, floodway or
special flood hazard, (e) drainage, (f) soil conditions, including the
existence of instability, past soil repairs, soil additions or conditions of
soil fill, or susceptibility to landslides, or the sufficiency of any
undershoring, (g) zoning to which the Property or any portion thereof may be
subject, (h) the availability of any utilities to the Property or any portion
thereof including water, sewage, gas and electric, (i) usages of adjoining
property, (j) access to the Property or any portion thereof, (k) the value,
compliance with the plans and specifications, size, location, age, use, design,
quality, descriptions, suitability, seismic or other structural integrity,
operation, title to, or physical or financial condition of the improvements or
any other portion of the Property, (l) any income, expenses, charges, liens,
encumbrances, rights or claims on or affecting or pertaining to the Property or
any part thereof, (m) the presence of hazardous substances in or on, under or
in the vicinity of the Property, (n) the condition or use of the Property or
compliance of the Property with any or all past, present or future federal,
state or local ordinances, rules, regulations or laws, building, fire or zoning
ordinances, codes or other similar laws, (o) the existence or non-existence of
underground storage tanks, (p) any other matter affecting the stability or
integrity of the Real Property, (q) the potential for further development of
the Property, (r) the existence of vested land use, zoning or building
entitlements affecting the Property, (s) the merchantability of the Property or
fitness of the Property for any particular purpose (CBL/OP affirming that
CBL/OP has not relied on the skill or judgment of Property Owner, Property
Owner's Property manager, or any of their respective agents, employees,
contractors or representatives to select or furnish the Property for any
particular purpose, and that Property Owner does not make any warranty that the
Property is fit for any particular purpose) or (t) tax consequences (including
the amount, use or provisions relating to any tax credits). CBL/OP further
acknowledges that any information of any type which CBL/OP has received or may
receive from Property Owner or any of its agents, employees, contractors or
representatives, including any environmental reports and survey, is furnished
on the express condition that CBL/OP shall not rely thereon, but shall make an
independent verification of the accuracy of such information, all such
information being furnished without any representation or warranty whatsoever.
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9.2 Sale "As Is". CBL/OP represents and warrants that CBL/OP is a knowledgeable,
experienced and sophisticated buyer of real estate and that CBL/OP has relied
and shall rely solely on (a) CBL/OP's own expertise and that of CBL/OP's
advisors and consultants in purchasing the Property, and (b) CBL/OP's own
knowledge of the Property based on CBL/OP's investigations and inspections of
the Property. CBL/OP has conducted such inspections and investigations of the
Property as CBL/OP deems necessary, including the physical and environmental
conditions thereof, and shall rely upon same. Upon Closing, CBL/OP shall assume
the risk that adverse matters, including adverse physical and environmental
conditions, may not have been revealed by CBL/OP's inspections and
investigations. CBL/OP acknowledges and agrees that upon Closing, Property
Owner shall convey to CBL/OP and CBL/OP shall accept the Property based on the
condition of the Property being "as is, where is," with all faults and defects
(latent and apparent). CBL/OP further acknowledges and agrees that there are no
oral agreements, warranties or representations with respect to the Property
made by any Property Owner, or any agent, employee, contractor or
representative of either of them except for representations and warranties made
by Property Owner in this Agreement or any document delivered at or prior to
Closing pursuant hereto. The terms and conditions of Section 9.1 and this
Section 9.2 shall expressly survive the Closing, shall not merge with any
Closing Documents. Property Owner is not liable or bound in any manner by any
oral or written statements, representations or information pertaining to the
Property furnished by Property Owner's Property Manager, Property Owner's
broker or any other real estate broker, or any contractor, agent, or other
third person. CBL/OP acknowledges that the Purchase Price reflects the "as is"
condition of the Property and any faults, liabilities, defects or other adverse
matters that may be associated with the Property except for representations and
warranties made by Property Owner in this Agreement or any document delivered
at or prior to Closing pursuant hereto. CBL/OP has fully reviewed the
disclaimers and waivers set forth in this Agreement with CBL/OP's counsel and
understands the significance and effect thereof.
9.3 CBL/OP Acknowledgments. CBL/OP acknowledges and agrees that (a) to the
extent required to be operative, the disclaimers of warranties contained in
Section 9.1 and Section 9.2 above are "conspicuous" disclaimers for purposes of
all applicable laws and other legal requirements, and (b) the disclaimers and
other agreements set forth in Section 9.1 and Section 9.2 are an integral part
of this Agreement, that the Purchase Price has been adjusted to reflect the
same and that Property Owner would not have agreed to consummate the
transactions contemplated hereby without the disclaimers and other agreements
set forth in Section 9.1 and Section 9.2 above.
9.4 CBL/OP Represented by Counsel. CBL/OP hereby represents and warrants to
Property Owner that: (a) CBL/OP is not in a significantly disparate bargaining
position in relation to Property Owner; (b) CBL/OP is represented by legal
counsel in connection with the transaction contemplated by this Agreement; and
(c) CBL/OP is acquiring the Property for business, commercial, investment or
other similar purposes.
9.5 CBL/OP's Release of Property Owner.
9.5.1 Property Owner Released From Liability. Subject to those obligations
(including, without limitation, representations and warranties) of Property
Owner which this Agreement specifically provides shall survive the Closing,
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CBL/OP hereby waives its and their right to recover from and fully and
irrevocably releases Property Owner, Property Owner's Property Manager and
Property Owner's employees, officers, directors, representatives, agents,
advisors, servants, attorneys, affiliates, parent, subsidiaries, successors and
assigns, and all persons, firms, corporations and organizations acting on
Property Owner's behalf (the "Released Parties") from any and all claims,
responsibility and/or liability that CBL/OP may now have or hereafter acquire
against any of the Released Parties for any costs, loss, liability, damage,
expenses, demand, action or cause of action arising from or related to (a) the
physical, environmental and structural condition (including any construction
defects, errors, omissions or other conditions, latent or otherwise), valuation,
salability or utility of the Property, or its suitability for any purpose
whatsoever, (b) the presence of any environmental problems, or the use,
presence, storage, release, discharge, or migration of Hazardous Substances on,
in, under or around the Property regardless of when such Hazardous Substances
were first introduced in, on or about the Property, and (c) the presence,
release and/or remediation of asbestos and asbestos containing materials in, on
or about the Property regardless of when such asbestos and asbestos containing
materials were first introduced in, on or about the Property. Notwithstanding
the foregoing, the Released Parties shall not be deemed to include contractors,
subcontractors and other persons who are unaffiliated with Property Owner and
who have supplied labor, materials or equipment to a work of improvement at the
Real Property. This release includes claims of which CBL/OP is presently unaware
or which CBL/OP does not presently suspect to exist which, if known by CBL/OP,
would materially affect CBL/OP's release of the Released Parties. CBL/OP
specifically waives the provision of any statute or principle of law, which
provides otherwise. In this connection and to the extent permitted by law,
CBL/OP agrees, represents and warrants that CBL/OP realizes and acknowledges
that factual matters now unknown to CBL/OP may have given or may hereafter give
rise to causes of action, claims, demands, debts, controversies, damages, costs,
losses and expenses which are presently unknown, unanticipated and unsuspected,
and CBL/OP further agrees, represents and warrants that the waivers and releases
herein have been negotiated and agreed upon in light of that realization and
that CBL/OP nevertheless hereby intends to release, discharge and acquit
Property Owner from any such unknown causes of action, claims, demands, debts,
controversies, damages, costs, losses and expenses.
9.5.2 Claims Under Environmental Laws. As used herein, (a) "Environmental Laws"
means the Comprehensive Environmental Response, Compensation and Liability Act
of 1980 (42 U.S.C. Section 9601 et seq.), as amended, or the Resource
Conservation and Recovery Act (42 U.S.C. Section 6902 et seq.), as amended, or
any similar federal, state or local law, ordinance, rule or regulation
applicable to the Property (including any principles of common law or common law
theories); and (b) "Hazardous Substances" means any hazardous, toxic or
dangerous waste, substance or material, any pollutant or contaminant, or any
substance which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic or otherwise hazardous, or any substance
which contains gasoline, diesel fuel or other petroleum hydrocarbons,
polychlorinated biphenyls (PCBs), radon gas, urea formaldehyde or asbestos; and
(c) "Unknown Environmental Liabilities" means future obligations to remediate
Hazardous Substances which are located on the Property prior to the Closing,
whether or not such Hazardous Substance is disclosed by any of the Property
Records, CBL/OP's Information or any other source prior to the Closing. Without
limiting the foregoing provisions of this Article IX and notwithstanding the
provisions of any Environmental Laws to the contrary, but subject to (and
without waiving in any respect) the representations and warranties made by
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Property Owner in Sections 7.1.11, 7.1.13 and 7.1.19 above, (i) Unknown
Environmental Liabilities relating to the Property which exist on or before the
Closing shall be borne solely by CBL/OP, and (ii) Property Owner shall be deemed
to be released from all Unknown Environmental Liabilities pursuant to Section
9.5.1 above. Without limiting the foregoing, but subject to (and without waiving
in any respect) the representations and warranties made by Property Owner in
Sections 7.1.11, 7.1.13 and 7.1.19 above, CBL/OP hereby waives and agrees not to
commence any action, legal proceeding, cause of action or suits in law or
equity, of whatever kind or nature, including a private right of action under
the federal superfund laws, 42 U.S.C. Sections 9601 et seq. or any other
Environmental Laws (as such laws and statutes may be amended, supplemented or
replaced from time to time), directly or indirectly, against the Released
Parties in connection with Unknown Environmental Liabilities or any other claims
relating to Hazardous Substances at the Property or arising under Environmental
Laws with respect to the Property.
/s/ KLH
CBL/OP'S INITIALS
9.5.3 Survival. The foregoing provisions of this Article IX, including the
waivers and releases by CBL/OP, shall survive the Closing.
ARTICLE X
REMEDIES
10.1 Liquidated Damages; Property Owner's Remedies. In the event the Closing and
the consummation of the transaction contemplated herein do not occur as
provided herein by reason of any breach of CBL/OP, CBL/OP, and Property Owner
agree that it would be impractical and extremely difficult to estimate the
damages which Property Owner may suffer as a result thereof. Therefore, CBL/OP
and Property Owner do hereby agree that a reasonable estimate of the total net
detriment that Property Owner would suffer in the event that CBL/OP breaches
this Agreement and fails to complete the purchase of the Property is and shall
be, as Property Owner's sole and exclusive remedy (whether at law or in
equity), and as the full, agreed and liquidated damages for such breach, the
payment of the Deposit under the Other Mall Contracts (it being agreed by
Property Owner that such Deposit shall be allocated among the Property Owner
and the Other Mall Contributors in the manner described in the Indemnification
Escrow Agreement which is attached hereto as Exhibit AA) (it being understand
that there is no separate "Deposit" for this Agreement). Upon any such breach
by CBL/OP, unless otherwise specified, this Agreement shall be terminated and
neither party shall have any further rights or obligations hereunder, each to
the other, except for the right of Property Owner to collect and retain such
liquidated damages from CBL/OP and Escrow Agent and the obligation of CBL/OP to
deliver to Property Owner the delivery items pursuant to Section 4.6 above;
provided, however, that this liquidated damages provision shall not limit
Property Owner's right to (a) receive reimbursement for or recover damages in
connection with CBL/OP's indemnity of Property Owner and/or breach of CBL/OP's
obligations pursuant to Section 4.4.2 and Section 5.9 above, (b) recover
attorneys' fees and court costs pursuant to Section 10.3 below, (c) injunctive
relief under Section 4.2.6 above, and/or (d) pursue any and all remedies
available at law or in equity in the event that following any termination of
this Agreement, CBL/OP or any other CBL/OP party asserts any claims or right to
36
the Property that would otherwise delay or prevent Property Owner from having
clear, indefeasible and marketable title to the Property. The parties
acknowledge that the payment of such liquidated damages is not intended as a
forfeiture or penalty, but is intended to constitute liquidated damages to
Property Owner.
10.2 CBL/OP's Remedies. Subject to Section 10.5 below, in the event the Closing
and the consummation of the transaction contemplated herein do not occur as
provided herein by reason of any breach of Property Owner, then CBL/OP shall
elect, as CBL/OP's sole remedy, either to: (a) terminate this Agreement by
giving Property Owner timely written notice of such election prior to or upon
the Closing Date, and CBL/OP shall be entitled to recover from Escrow Agent or
Oak Park Property Owner, as applicable, the Letter of Credit or the Deposit, as
applicable; or (b) enforce specific performance against Property Owner, in
which event there shall be no reduction of the Purchase Price and CBL/OP shall
not be entitled to recover any damages (whether actual, direct, indirect,
consequential, punitive or otherwise) notwithstanding such failure or breach by
Property Owner. Notwithstanding the foregoing, if Property Owner breaches any
of Property Owner's obligations which pursuant to this Agreement are to be
performed by Property Owner prior to the Closing Date, and instead of
terminating this Agreement pursuant to this Section 10.2, CBL/OP proceeds with
the Closing, then CBL/OP shall be deemed to have waived such default by
Property Owner, provided that CBL/OP has knowledge thereof prior to Closing.
CBL/OP shall be deemed to have elected to terminate this Agreement pursuant to
Clause (a) hereinabove if CBL/OP fails to commence an action to assert a claim
for specific performance against Property Owner on or before 30 days following
the Closing Date. Notwithstanding the foregoing to the contrary, no notice of
termination given by CBL/OP hereunder shall be of any force or effect if
Property Owner cures the default within 5 Business Days after Property Owner's
receipt of any such termination notice. If CBL/OP duly elects to terminate or
is deemed to have elected to terminate this Agreement pursuant to Clause (a)
hereinabove, then CBL/OP shall and hereby agrees in such event to waive any and
all right to file or record any lis pendens or any other lien or encumbrance
against the Property or to seek specific performance or other equitable relief
or to seek or recover from Property Owner any damages (including any actual
direct, indirect, consequential, punitive or other damages).
10.3 Attorneys' Fees. If any action is brought by either party against the other
party, relating to or arising out of this Agreement, the transaction described
herein or the enforcement hereof, the prevailing party shall be entitled to
recover from the other party reasonable attorneys' fees, costs and expenses
incurred in connection with the prosecution or defense of such action. For
purposes of this Agreement, the term "attorneys' fees" or "attorneys' fees and
costs" shall mean the fees and expenses of counsel to the parties hereto, which
may include printing, photostatting, duplicating and other expenses, air
freight charges, and fees billed for law clerks, paralegals and other persons
not admitted to the bar but performing services under the supervision of an
attorney, and the costs and fees incurred in connection with the enforcement or
collection of any judgment obtained in any such proceeding. The provisions of
this Section 10.3 shall survive the Closing and any termination of this
Agreement and shall survive the entry of any judgment, and shall not merge, or
be deemed to have merged, into any judgment.
10.4 Mutual Post-Closing Indemnities.
10.4.1 Definition of Losses. For purposes of this Section, "Losses" shall mean
any and all claims, actions, suits, demands, losses, damages, liabilities,
37
obligations, judgments, settlements approved by the indemnifying party, awards,
penalties, costs or expenses, including, without limitation, reasonable
attorneys' and paralegals' fees and expenses (based on actual time spent and
normal billing rates, and without giving effect to any statutory presumption of
the amount of reasonable attorneys' fees that might apply) but excluding the
following but only insofar as the following do not or have not resulted in
actual monetary loss: any damage to reputation, mental or emotional distress or
interference with business operations.
10.4.2 Property Owner's Indemnity. Subject to the limitations set forth in
Section 7.3 above and Sections 10.5 and 10.6 below, Property Owner hereby agrees
to indemnify, hold harmless and defend CBL/OP and any officer, director,
partner, employee and/or agent of CBL/OP from and against any and all Losses
arising out of or resulting from (i) any default by Property Owner on or prior
to Closing under the Service Contracts; (ii) the breach or inaccuracy of any
representation or warranty made by Property Owner in this Agreement or the
Closing documents delivered by Property Owner; (iii) any third party tort claim
with respect to the Property that arises or arose as the result of any injury or
damage occurring on or prior to Closing; (iv) the failure of Property Owner to
perform any of their covenants (I) set forth in Article VIII of this Agreement,
(II) or such other covenants set forth in this Agreement that are to be
performed after the Closing; or (v) any claims by Property Owner's employees,
including, but not limited to, any claims related to any termination of such
employees' employment and any unpaid wages, severances, bonuses, and retirement
packages; provided, however, that nothing in this Section 10.4.2 shall obligate
Property Owner to indemnify, hold harmless or defend CBL/OP with regard to any
Losses arising from (1) any continuing condition of the Property as of the
Closing Date which CBL/OP has agreed to accept in its "AS-IS, WHERE-IS"
condition as of the Closing Date, or (2) any matter for which CBL/OP has agreed
to release Property Owner pursuant to Section 9.5 of this Agreement, or (3) any
matter described in the last sentence of Section 7.5.
10.4.3 Sources for Satisfaction of Property Owner's Indemnity. At the Closing,
CBL/OP, Property Owner and the Other Mall Contributors shall establish with
Escrow Agent at Closing a single escrow account (the "Indemnity Escrow Fund")
for this Agreement and the Other Mall Contracts, into which $5,000,000 shall be
deposited by the Property Owner and the Other Mall Contributors and held and
administered by the Escrow Agent pursuant to the terms and conditions of the
Indemnity Escrow Agreement as the initial source for CBL/OP's claims for
indemnifications under this Agreement and under the Other Mall Contracts. The
entire amount of the Indemnity Escrow Fund shall be available to satisfy claims
under this Agreement or either of the Other Mall Contracts, without regard to
what portion of such Indemnity Escrow Fund has been funded by Property Owner
hereunder or by Other Mall Contributors. At any time prior to the "Expiration
Date" specified in Section 7.3, CBL/OP shall be entitled to make a claim against
the Indemnity Escrow Fund for Losses incurred by CBL/OP and for which it is
entitled to be indemnified pursuant to Section 10.4.2 of this Agreement;
provided however, with respect to the "Unlimited Claims" set forth in Section
10.6, CBL/OP's remedy shall not be limited to the amount of funds held of the
Indemnity Escrow Fund, and CBL/OP may make a claim directly against any Property
Owner for payment thereof. As of the Expiration Date, the funds remaining in the
Indemnity Escrow Fund shall be disbursed in the manner described in the
Indemnity Escrow Agreement, except to the extent that CBL/OP has made a claim
hereunder which remains outstanding, in which case, the amount in excess of such
38
claim shall be disbursed pursuant to the Indemnity Escrow Agreement, and the
remaining amount, if any, shall be disbursed upon the resolution of such claim.
10.4.4 CBL/OP's Indemnity. Subject to the limitations set forth herein, CBL/OP
agrees to indemnify, hold harmless and defend Property Owner and any officer,
director, member, employee and/or agent of Property Owner from and against any
and all costs, losses, damages and expenses, of any kind or nature whatsoever
(including attorneys' fees and costs) arising out of or resulting from (i) any
default by CBL/OP on or after Closing under the Service Contracts (whether or
not assumed by CBL/OP), (ii) the breach or inaccuracy of any representation or
warranty made by CBL/OP in this Agreement or the Closing documents delivered by
CBL/OP, (iii) any third party tort claim with respect to the Property that
arises or arose as the result of any injury or damage occurring after Closing,
(iv) the failure of CBL/OP to perform any of its covenants set forth in this
Agreement, or (v) any other liabilities relating to the operation of the
Property arising from and after Closing.
10.5 Minimum Amount Requirement for Damages. Notwithstanding anything to the
contrary contained in this Agreement, if the Closing is consummated, neither
party shall have any liability to the other party following the Closing with
respect to any breaches of indemnification obligations under Sections 10.4.2
and 10.4.4 (nor with respect to the breach of any obligation or warranty or
representation to which such indemnity applies [collectively, an
"Indemnification Obligation"]), unless and until the aggregate amount of the
actual general and compensatory damages suffered by the non-defaulting party by
reason of any such breaches of an Indemnification Obligation, exceeds the sum
of $250,000 in the aggregate of this Agreement and the Other Mall Contracts;
but then in such event, the damages that the non-defaulting party may collect
shall begin with and include the first dollar of such loss. Unless and until
the amount of the actual damages suffered or incurred by the non-defaulting
party by reason of any such breaches of Indemnification Obligations exceeds in
the aggregate (under this Agreement and the Other Mall Contracts) the sum of
$250,000, the non-defaulting party shall not be entitled to file an action or
lawsuit or undertake any other legal proceeding against the defaulting party by
reason of any such breaches of Indemnification Obligations. The provisions of
this Section 10.5 shall survive the Closing. The limitations set forth in this
Section 10.5 shall not apply to breaches of any covenants (other than the
Indemnification Obligations), nor apply to the prorations pursuant to Article
VI.
10.6 Limitation of Property Owner's Liability. Subject to the limitations and
other provisions of this Agreement, Property Owner's total liability with
respect to a breach of any of Property Owner's representations or warranties
contained in this Agreement or in any document or instrument executed and
delivered by Property Owner at Closing or any breach of Property Owner's
Indemnification Obligations (other than the representations and warranties set
forth in Sections 7.1.1, 7.1.6, or 7.1.7 or the indemnification obligations
under Sections 10.4.2 to the extent the same cover breaches of the
representations and warranties under Sections 7.1.1, 7.1.6, or 7.1.7
[collectively, the "Unlimited Claims"]) is limited to $5,000,000 in the
aggregate for all such breaches hereunder and all breaches of the comparable
provisions of the Other Mall Contracts. In computing the aggregate amount of
claims for the foregoing purpose, Property Owner's liability shall be in
addition to the amount of any insurance proceeds and any indemnity,
contribution or similar payment received by CBL/OP from any third party with
respect thereto less expenses incurred by CBL/OP in collecting any such
39
insurance proceeds and third party payments. The foregoing limitation on
liability shall survive the Closing or any earlier termination of this
Agreement and shall not diminish or otherwise affect CBL/OP's waivers and
releases in Article IX of this Agreement.
10.7 Intentionally Omitted,
10.8 Limited Liability. CBL/OP hereby agrees that in no event or circumstance
shall any of the members, partners, shareholders, employees, representatives,
officers, directors, or agents of Property Owner or Property Owner's Property
Manager have any personal liability under this Agreement, or to any of CBL/OP's
creditors, or to any other party in connection with the Property. Property
Owner hereby agrees that in no event or circumstance shall any of the members,
partners, shareholders, employees, representatives, officers, directors, or
agents of CBL/OP have any personal liability under this Agreement, or to any of
Property Owner's creditors, or to any other party in connection with the
Property.
Notwithstanding anything contained herein to the contrary, this Article X
shall survive the Closing.
ARTICLE XI
CONDEMNATION/CASUALTY DAMAGE
11.1 Condemnation. If, prior to Closing, any governmental authority or other
entity having condemnation authority shall institute an eminent domain
proceeding or take any steps preliminary thereto (including the giving of any
direct or indirect notice of intent to institute such proceedings) with regard
to a "Material Portion" of the Land and Improvements (as defined below), and
the same is not dismissed prior to the Closing Date, CBL/OP shall be entitled,
as CBL/OP's sole remedy, to terminate this Agreement upon written notice to
Property Owner (a) within 15 Business Days following notice by Property Owner
to CBL/OP of such condemnation or the threatened condemnation or (b) on the
Closing Date, whichever occurs first. If CBL/OP does not terminate this
Agreement pursuant to the preceding sentence, CBL/OP shall be conclusively
deemed to have elected to accept such condemnation and waives any right to
terminate this Agreement as a result thereof. For purposes of this Section
11.1, a "Material Portion" shall mean that portion of the Land and Improvements
which, if taken or condemned, would cause the Eastland Mall to be in violation
of the current applicable zoning laws with regards to required number of
parking spaces for the Eastland Mall. If CBL/OP elects to terminate this
Agreement under this Section 11.1, Escrow Agent or Property Owner, as
applicable, shall return the Deposit to the CBL/OP and neither party shall have
any further rights or obligations under this Agreement, except for the CBL/OP's
Surviving Obligations. If CBL/OP waives (or is deemed to have waived) the right
to terminate this Agreement as a result of such a condemnation, then despite
such condemnation, Property Owner and CBL/OP shall proceed to Closing in
accordance with the terms of this Agreement with no reduction in the Purchase
Price, and Property Owner shall assign to CBL/OP at Closing, as part of the
Intangible Property, all of Property Owner's right, title and interest in and
to all proceeds resulting or to result from said condemnation and give a credit
for any proceeds received prior to Closing.
11.2 Nonmaterial Condemnation. If, prior to Closing, a taking or condemnation
relating to the Property has occurred, or is threatened, which is not described
40
in Section 11.1 above, the Closing shall take place as provided in this
Agreement with no reduction of the Purchase Price, and Property Owner shall
assign to CBL/OP at Closing, as part of the Intangible Property, all of
Property Owner's right, title and interest in and to all proceeds resulting or
to result from said condemnation and give a credit for any proceeds received
prior to Closing.
11.3 Casualty Damage. If, prior to the Closing, any of the Improvements are
damaged by fire or other casualty (collectively, "Casualty"), then: (i) the
parties shall proceed to close this transaction in accordance with the terms of
this Agreement; (ii) at the Closing, CBL/OP shall receive a credit against the
Purchase Price in an amount equal to the deductible under Property Owner's
casualty insurance policy plus the amount of any proceeds received by Property
Owner prior to Closing to the extent the same exceed costs of restoration and
repair expended by Property Owner; and (iii) Property Owner shall, as part of
the Intangible Property, assign to CBL/OP all of Property Owner's rights in the
resulting casualty insurance proceeds; provided, however, that in no event
shall the sum of such credit for the deductible and the amount of the insurance
proceeds assigned to CBL/OP pursuant to Clauses (ii) and (iii) hereinabove
exceed the lesser of (1) the Purchase Price or (2) the cost to complete the
repair of the Casualty following the Closing; provided, however, CBL/OP shall
have no obligation to close with an assignment of casualty insurance proceeds
unless Property Owner shall provide to CBL/OP a statement from the insurance
company recognizing the casualty and the applicability of the insurance policy
thereto and noting the insurance carrier's acknowledgement of the coverages set
forth in the insurance policy to the particular casualty with no offsets,
exclusions or denials of coverage and the assignability of the policy to the
CBL/OP, and CBL/OP shall be reasonably satisfied that the insurance proceeds
are adequate to restore the damage, and if Property Owner fails to provide such
statement from the insurance company by the Closing Date, and Property Owner is
unwilling to escrow (on terms mutually satisfactory to the parties) the amount
required to restore the damage, CBL/OP may elect to terminate this Agreement,
by written notice to Property Owner. If CBL/OP elects to terminate this
Agreement under this Section 11.3, Escrow Agent or Oak Park Property Owner, as
applicable, shall return the Letter of Credit or the Deposit, as applicable, to
CBL/OP and neither party shall have any further rights or obligations under
this Agreement, except for the CBL/OP's Surviving Obligations.
ARTICLE XII
INTENTIONALLY OMITTED
ARTICLE XIII
MISCELLANEOUS
13.1 Entire Agreement. This Agreement contains the entire agreement of the
parties hereto. There are no other agreements, oral or written, and this
Agreement can be amended only by written agreement signed by the parties
hereto, and by reference made a part hereof.
13.2 CBL/REIT Board Approval; Agreement Binding on Parties. The effectiveness of
this Agreement is subject to the approval of the Board of Directors of CBL/REIT
within 72 hours following execution thereof by CBL/OP. Subject only to such
Board approval, this Agreement, and the terms, covenants, and conditions
41
contained herein, shall inure to the benefit of and be binding upon the heirs,
personal representatives, successors, and assigns of each of the parties
hereto. CBL/OP may assign CBL/OP's rights under this Agreement only upon the
following conditions: (a) the assignee of CBL/OP must be an entity which is
directly owned or controlled by CBL/OP; (b) the Deposit must have been
delivered to Escrow Agent in accordance with Section 3.2.1 above; (c) CBL/OP
shall remain primarily liable for the performance of CBL/OP's obligations under
this Agreement; and (d) the assignee must expressly assume in writing all of
CBL/OP's obligations under this Agreement, and CBL/OP shall deliver to Property
Owner a copy of the fully executed written assignment and assumption agreement
between CBL/OP and such assignee at or before the Closing.
13.3 Notice. Any notice, communication, request, reply or advice (collectively,
"Notice") provided for or permitted by this Agreement to be made or accepted by
either party must be in writing. Notice may, unless otherwise provided herein,
be given or served (a) by delivering the same to such party, or an agent of
such party, in person or by commercial courier, (b) by facsimile transmission,
evidenced by confirmed receipt and concurrently followed by a "hard" copy of
same delivered to the party by personal delivery or overnight delivery pursuant
to Clauses (a) or (c) hereof, or (c) by depositing the same into custody of a
nationally recognized overnight delivery service such as Federal Express,
Overnight Express or Airborne Express. Notice given in any manner shall be
effective only if and when received by the party to be notified between the
hours of 8:00 a.m. and 5:00 p.m. of any Business Day with delivery made after
such hours to be deemed received the following Business Day. For the purposes
of notice, the addresses of Property Owner, CBL/OP, Escrow Agent and the Title
Company shall, until changed as hereinafter provided, be as set forth in
Article I. The parties hereto shall have the right from time to time to change
their respective addresses, and each shall have the right to specify as its
address any other address within the United States of America by at least 5
days written notice to the other party.
13.4 Time of the Essence. Time is of the essence in all things pertaining to the
performance of this Agreement.
13.5 Governing Law. This Agreement shall be construed in accordance with the
laws of the state of Illinois.
13.6 Currency. All dollar amounts are expressed in United States currency.
13.7 Section Headings. The section and article headings contained in this
Agreement are for convenience only and shall in no way enlarge or limit the
scope or meaning of the various and several sections hereof.
13.8 Business Days. If any date or any period provided for in this Agreement
shall end on a Saturday, Sunday or legal holiday, the applicable date or period
shall be extended to the first Business Day following such Saturday, Sunday or
legal holiday.
13.9 No Recordation. Without the prior written consent of Property Owner, there
shall be no recordation of either this Agreement or any memorandum hereof or
any affidavit pertaining hereto, and any such recordation of this Agreement or
memorandum hereof or affidavit pertaining hereto by CBL/OP without the prior
42
written consent of Property Owner shall constitute a material default hereunder
by CBL/OP, whereupon this Agreement shall, at the option of Property Owner,
terminate and be of no further force and effect. Upon such termination, the
Letter of Credit or the Deposit, as applicable, shall be immediately delivered
to Property Owner or Property Owner shall retain the Deposit, as the case may
be, whereupon neither CBL/OP, Property Owner shall not have any further rights
or obligations under this Agreement, except for the CBL/OP's Surviving
Obligations.
13.10 Multiple Counterparts; Facsimile. This Agreement may be executed in
multiple counterparts (each of which is to be deemed original for all
purposes). The signature page of any counterpart may be detached therefrom
without impairing the legal effect of the signature(s) thereon so long as such
signature page is attached to any other counterpart of this Agreement identical
thereto except having additional signature pages executed by the other parties
to this Agreement attached thereto. CBL/OP and Property Owner agree that the
delivery of an executed copy of this Agreement by facsimile shall be legal and
binding and shall have the same full force and effect as if an original
executed copy of this Agreement had been delivered.
13.11 Severability. If any provision of this Agreement or application to any
party or circumstance shall be determined by any court of competent
jurisdiction to be invalid and unenforceable to any extent, the remainder of
this Agreement or the application of such provision to such person or
circumstances, other than those as to which it is so determined invalid or
unenforceable, shall not be affected thereby, and each provision hereof shall
be valid and shall be enforced to the fullest extent permitted by law.
13.12 Limitations on Benefits. It is the explicit intention of CBL/OP and
Property Owner that no person or entity other than CBL/OP and Property Owner
and their permitted successors and assigns is or shall be entitled to bring any
action to enforce any provision of this Agreement against any of the parties
hereto, and the covenants, undertakings and agreements set forth in this
Agreement shall be solely for the benefit of, and shall be enforceable only by,
CBL/OPand Property Owner or their respective successors and assigns as
permitted hereunder. Nothing contained in this Agreement shall under any
circumstances whatsoever be deemed or construed, or be interpreted, as making
any third party (including Property Owner's Property Manager, Property Owner's
Broker, or CBL/OP's lender) a beneficiary of any term or provision of this
Agreement or any instrument or document delivered pursuant hereto, and CBL/OP
and Property Owner expressly reject any such intent, construction or
interpretation of this Agreement.
13.13 Interpretation. For purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires: (a) the terms
defined in Article I above and have the meanings assigned to them in Article I
above and include the plural as well as the singular, and the use of any gender
herein shall be deemed to include the other genders; (b) references herein to
"Articles," "Sections," subsections, paragraphs and other subdivisions without
reference to a document are to designated Articles, Sections, subsections,
paragraphs and other subdivisions of this Agreement; (c) a reference to a
subsection without further reference to a Section is a reference to such
subsection as contained in the same Section in which the reference appears, and
this rule shall also apply to paragraphs and other subdivisions; (d) the words
"hereof," "herein," "thereof," "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular provision; (e) the
word "including" or "includes" means "including, but not limited to" or
43
"includes but is not limited to"; (f) the words "approval," "consent" and
"notice" shall be deemed to be preceded by the word "written"; (g) any
reference to this Agreement or any Exhibits hereto and any other instruments,
documents and agreements shall include this Agreement, Exhibits and other
instruments, documents and agreements as originally executed or existing and as
the same may from time to time be supplemented, modified or amended; and (h)
unless otherwise specifically provided, all references in this Agreement to a
number of days shall mean calendar days rather than Business Days and (i)
"Business Days" shall mean any day other than a Saturday, a Sunday or a Federal
holiday on which banks are closed for business in New York, New York.
13.14 Further Actions. CBL/OP and Property Owner shall execute or cause to be
executed all such instruments or agreements as may be reasonably necessary in
order to carry out the purpose of this Agreement, and each party shall do all
other acts reasonably necessary or reasonably requested by the other to carry
out the intent and purpose of this Agreement.
13.15 No Other Inducements. The making, execution and delivery of this Agreement
by the parties hereto has been induced by no representations, statements,
warranties or agreements other than those expressly set forth herein.
13.16 Participation in Drafting. The language in all parts of this Agreement
shall be in all cases construed simply according to its fair meaning and not
strictly for or against any of the parties hereto. Property Owner and CBL/OP
each acknowledge that they participated equally in the drafting of this
Agreement and, accordingly, no court construing this Agreement shall construe
it more stringently against one party than any other.
13.17 Exhibits. Exhibit A through Exhibit AA and Schedules I, II, 3.3 and 7.1
are incorporated herein by reference.
13.18 No Partnership/Fiduciary Relationship. The parties acknowledge and agree
that the relationship created by this Agreement between Property Owner and
CBL/OP is one of contract only, and that no partnership, joint venture or other
fiduciary or quasi-fiduciary relationship is intended or in any way created
hereby.
13.19 Conditional Delivery. The submission by Property Owner to CBL/OP of this
Agreement in unsigned form shall be deemed to be a submission solely for
CBL/OP's consideration and not for acceptance and execution. Neither such
submission of this Agreement by Property Owner to CBL/OP nor any course of
conduct between CBL/OP and Property Owner nor any actions undertaken or sums
expended by CBL/OP shall confer any option or other right upon CBL/OP or impose
any obligation upon Property Owner irrespective of any reliance thereon, change
of position or partial performance. The submission by Property Owner of this
Agreement for execution by CBL/OP and the actual execution and delivery thereof
by CBL/OP to Property Owner shall similarly have no binding force and effect on
Property Owner unless and until Property Owner have executed and delivered a
counterpart of this Agreement to CBL/OP and the Deposit has been actually
received by Escrow Agent.
13.20 Survival. Except as expressly provided in this Agreement, the
representations, warranties and covenants set forth in this Agreement shall not
44
survive the Closing and shall be merged into the Special Warranty Deed and
other instruments and conveyances delivered at the Closing.
13.21 Public Disclosure. Prior to Closing, any release to the public of
information with respect to the sale contemplated herein or any matters set
forth in this Agreement will be made only in the form approved by CBL/OP and
Property Owner and their respective counsel.
13.22 Assignment. CBL/OP shall have the right, with notice to Property Owner
(but without the necessity of Property Owner's consent), to assign its right,
title and interest in and to this Agreement to one or more assignees affiliated
with CBL/OP at any time before the Closing Date, provided that in no event
shall CBL/OP be released from any of its obligations or liabilities hereunder.
13.23 Like Kind Exchange.
(a) It is understood and agreed that Property Owner shall have the
option, exercisable by giving notice to CBL/OP at any time prior to the Closing
Date, of effecting a like-kind exchange of all or any portion of the Property by
assigning (the "Assignment") its rights in this Agreement to a qualified
intermediary (the "Intermediary") who shall contract with Property Owner to
deliver to Property Owner in exchange therefor property or other consideration,
at such times as shall be designated in the contract between Property Owner and
the Intermediary. Upon the Assignment, the Intermediary shall be substituted for
Property Owner as the seller of the property. CBL/OP agrees to accept the
Property and all other required performance from the Intermediary and to render
its performance of all of its obligations to the Intermediary; provided, that
Property Owner shall, at the Intermediary's direction, nevertheless convey the
Property to CBL/OP in accordance with (and as limited by) the terms of this
Agreement.
(b) CBL/OP shall reasonably cooperate with Property Owner and execute
such documents (including the Assignment) as are reasonably necessary for
Property Owner to effect such exchange; provided, that (i) the CBL/OP is not
required to take title to any parcel of property other than the Property, (ii)
the contemplated exchange shall not delay or effect any of the time periods or
other obligations of Property Owner hereunder, including, without limitation,
those related to the Closing and the scheduled date for the same, and (iii)
CBL/OP is not required to incur any expense or liability of any nature
whatsoever not expressly contemplated by this Agreement.
(c) Notwithstanding anything herein to the contrary, Property Owner
may, in its sole discretion and in connection with a tax deferred like-kind
exchange contemplated hereby, require that any portion of the Purchase Price be
paid in one or more purchase money notes (each, a "Note") from CBL/OP to
Property Owner in a form reasonably agreed to by the parties, provided that each
such Note shall bear interest at the rate of 6% per annum, be payable in one or
more payments with the last occurring on January 2, 2006, and be retained by
Property Owner in connection with any such exchange with the Intermediary and
transferrable by Property Owner to its partners without the CBL/OP's consent.
Any such Note may, at the request and expense of Property Owner, be secured by
one or more stand by letter(s) of credit issued by a bank designated by Property
Owner.
45
(d) Property Owner shall indemnify, defend and hold CBL/OP harmless
from any liability, damage, loss, cost or other expense including, without
limitation, reasonable attorneys' fees and costs, resulting or arising solely
from the implementation of any such exchange or assignment. No such exchange or
assignment by Property Owner shall relieve Property Owner from any of its
obligations hereunder, nor shall Property Owner's ability to consummate a tax
deferred exchange be a condition to the performance of Property Owner's
obligations under this Agreement.
[END OF TEXT; SIGNATURES FOLLOW ON IMMEDIATELY SUCCEEDING PAGES]
46
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first indicated above.
PROPERTY OWNER BMJ MEDICAL, LLC
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx
Manager
CBL/OP: CBL & ASSOCIATES LIMITED PARTNERSHIP
a Delaware limited partnership
By: CBL Holdings I, Inc., its general partner
By: /s/ Xxxxxxx X. Lebovitz____________
--------------------------------------
Name: Xxxxxxx X. Lebovitz_______
-------------------------------------
Title: President______
----------------------------------
[SIGNATURE PAGE TO
AGREEMENT OF SALE AND PURCHASE AND JOINT ESCROW INSTRUCTIONS]
47
PROPERTY OWNER'S PROPERTY MANAGER'S EXECUTION:
The undersigned, being Property Owner's Property Manager of the Property,
as such terms are defined in this Agreement, executes this Agreement for the
sole and exclusive purposes of (i) noting the undersigned's agreement to comply
with any provision or term of this Agreement (A) requiring Property Owner's
Property Manager to assign or transfer rights or interests to CBL/OP and execute
certain documents and instruments at Closing and/or (B) requiring Property
Owner's Property Manager to do any other act or thing under this Agreement or
refrain from any act, with the undersigned acknowledging that it and/or its
affiliate(s) and/or equity owners shall receive other consideration sufficient
to provide adequate consideration to the undersigned for any transfers or
assignments or such acts or agreements by Property Owner's Property Manager
hereunder; (ii) noting Property Owner's Property Manager's acknowledgement that
except for amounts payable by CBL/OP pursuant to Section 6.8, it has received or
shall receive at Closing full and complete payment from Property Owner for any
and all sums that are due and owing to Property Owner's Property Manager with
respect to any aspect of the Property or its operations; (iii) noting the
undersigned's waiver of any lien or right to any lien with respect to the
Property for any services rendered or to be rendered by Property Owner's
Property Manager or for any claim that Property Owner's Property Manager may
have against the Property or Property Owner; and (iv) noting the undersigned's
acknowledgement and agreement that the Management Agreement, as defined herein,
shall terminate on or prior to the date of Closing. Executed to be effective as
of the date first above written.
COPAKEN, WHITE & BLITT, LLC
By: /s/ Xxxx Marquis_____________________________________
Name: Xxxx Xxxxxxx
Title: Administrative Manager
48
JOINDER BY ESCROW HOLDER
FIDELITY NATIONAL TITLE COMPANY, referred to in this Agreement as the
"Escrow Holder," hereby acknowledges that on the 17th day of October, 2005, it
received this Agreement executed and delivered by CBL/OP and Property Owner, and
accepts the obligations of and instructions for the Escrow Holder as set forth
herein. Upon receipt thereof, the Escrow Holder hereby agrees to hold and
distribute the Letter of Credit or Deposit, as applicable, in accordance with
the terms and provisions of this Agreement.
Dated: October 17 , 2005
----
FIDELITY NATIONAL TITLE COMPANY
By: /s/ Xxxxx X. Tidwell_________________
------------------------------------------
Name: Xxxxx X. Tidwell_______
------------------------------------
Title: Vice President___
---------------------------------
49
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TABLE OF CONTENTS
Page
ARTICLE I CERTAIN DEFINITIONS AND FUNDAMENTAL PROVISIONS.............................................2
ARTICLE II CONTRIBUTION...............................................................................7
2.1 Agreement to Contribute the LLC Interests......................................................7
2.2 Excluded Property..............................................................................8
2.3 Other Mall Contribution Agreements.............................................................8
2.3.1 Definitions of other Malls and Purchase Agreements....................................8
2.3.2 Other Mall Contracts; Cross Default; Cross Termination................................8
ARTICLE III TOTAL CONSIDERATION........................................................................9
3.1 Total Consideration............................................................................9
3.2 K-SCUs.........................................................................................9
3.3 Informational Materials.......................................................................10
3.4 Registration Rights...........................................................................11
3.5 Delivery of Deposit...........................................................................11
3.6 Disposition of Deposit........................................................................11
3.7 Cash Consideration Payment....................................................................11
ARTICLE IV INSPECTION AND TITLE REVIEW...............................................................12
4.1 CBL/OP's Inspections..........................................................................12
4.1.1 Inspections, Tests and Studies.......................................................12
4.1.2 CBL/OP's Delivery of Information to Property Owner...................................12
4.1.3 Tenant and Governmental Authority Inquiries..........................................12
4.2 Document Review...............................................................................13
4.2.1 Property Records.....................................................................13
4.2.2 Excluded Documents...................................................................13
4.2.3 Proprietary Information..............................................................14
4.2.4 Return of Property Records...........................................................14
4.2.5 No Representation or Warranty By Property Owner......................................14
4.2.6 Remedies.............................................................................14
4.3 Title.........................................................................................14
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TABLE OF CONTENTS
(continued)
Page
4.3.1 Title Documents......................................................................14
4.3.2 Review of Title......................................................................15
4.3.3 Additional Title Objections..........................................................16
4.3.4 Voluntary Title Encumbrances.........................................................17
4.3.5 Use of Total Consideration to Discharge Liens........................................17
4.3.6 Title Policy.........................................................................17
4.3.7 Permitted Exceptions.................................................................18
4.4 Inspection Obligations........................................................................19
4.4.1 CBL/OP's Responsibilities............................................................19
4.4.2 CBL/OP's Indemnity...................................................................20
4.4.3 CBL/OP's Insurance...................................................................20
4.5 Intentionally omitted.........................................................................20
4.6 CBL/OP Deliveries Upon Termination............................................................20
4.7 Cancellation of Service Contracts.............................................................20
ARTICLE V ESCROW AND CLOSING........................................................................21
5.1 Escrow........................................................................................21
5.1.1 Opening of Escrow....................................................................21
5.1.2 Escrow Instructions..................................................................22
5.1.3 Closing..............................................................................22
5.1.4 Closing Date.........................................................................22
5.2 Conditions Precedent to the Closing for the Benefit of CBL/OP.................................22
5.2.1 Intentionally omitted................................................................22
5.2.2 Intentionally omitted................................................................22
5.2.3 Property Owner's and Contributors' Deliveries........................................22
5.2.4 Representations and Warranties.......................................................22
5.2.5 Covenants............................................................................23
5.2.6 Tenant and Anchor Store Estoppel Certificates........................................23
5.2.7 Condemnation or Casualty.............................................................24
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TABLE OF CONTENTS
(continued)
Page
5.2.8 Title Policy.........................................................................24
5.2.9 Lender Approval......................................................................24
5.2.10 Company LLC Agreement................................................................24
5.2.11 Closing Date Debt....................................................................24
5.2.12 Simultaneous Closings Under Other Mall Contracts.....................................24
5.3 Conditions Precedent to the Closing for the Benefit of Contributors...........................25
5.3.1 CBL/OP's Deliveries..................................................................25
5.3.2 Intentionally omitted................................................................25
5.3.3 Covenants............................................................................25
5.3.4 Title Policy.........................................................................25
5.3.5 Representations and Warranties.......................................................25
5.3.6 Company LLC Agreement................................................................26
5.3.7 Closing Date Debt....................................................................26
5.3.8 Simultaneous Closings Under Other Mall Contracts.....................................26
5.4 Property Owner's/Contributors' Deliveries.....................................................26
5.4.1 Special Warranty Deed................................................................26
5.4.2 Tenant Lease Assignment..............................................................26
5.4.3 Xxxx of Sale and General Assignment..................................................27
5.4.4 Non-Foreign Certificate..............................................................27
5.4.5 Tenant Notices.......................................................................27
5.4.6 Estoppels............................................................................27
5.4.7 Closing Statement....................................................................27
5.4.8 Authority............................................................................27
5.4.9 Property Manager's Estoppel..........................................................27
5.4.10 Intentionally Omitted................................................................27
5.4.11 Operating Agreement Assignment.......................................................27
5.4.12 Ground Lease Assignment..............................................................28
5.4.13 Original Documents...................................................................28
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TABLE OF CONTENTS
(continued)
Page
5.4.14 Possession...........................................................................28
5.4.15 Contract Termination.................................................................28
5.4.16 Contributors Closing Certificate.....................................................28
5.4.17 Assignment of LLC Interests..........................................................28
5.4.18 Partnership Interest Acknowledgement.................................................28
5.4.19 Owner's Affidavit....................................................................28
5.4.20 Other Documents......................................................................28
5.5 Existing Property Owner Debt..................................................................29
5.6 CBL/OP's Deliveries...........................................................................29
5.6.1 Funds................................................................................29
5.6.2 Partnership Interests................................................................29
5.6.3 CBL/OP Partnership Agreement.........................................................29
5.6.4 Closing Statement....................................................................29
5.6.5 CBL/OP Closing Certificate...........................................................29
5.6.6 Authority............................................................................29
5.6.7 Other Documents......................................................................29
5.7 Closing Date Debt.............................................................................29
5.8 Closing Costs.................................................................................30
5.8.1 Contributors' Closing Costs..........................................................30
5.8.2 CBL/OP's Closing Costs...............................................................30
5.8.3 General Allocation...................................................................30
5.9 Real Estate Commissions.......................................................................30
5.10 Real Estate Reporting Person..................................................................31
5.11 Post-Closing Access to Records................................................................31
5.12 SEC Reporting Requirements....................................................................31
ARTICLE VI PRORATIONS................................................................................32
6.1 General.......................................................................................32
6.2 Real Estate Taxes.............................................................................32
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TABLE OF CONTENTS
(continued)
Page
6.3 Operating Expenses............................................................................33
6.4 Rentals.......................................................................................33
6.4.1 Certain Defined Terms................................................................33
6.4.2 General..............................................................................34
6.4.3 Overage Rents........................................................................34
6.4.4 Percentage Rentals...................................................................35
6.5 Delinquent Rentals............................................................................36
6.6 Security Deposits.............................................................................36
6.7 Anchor Store Payments.........................................................................37
6.8 Tenant Installation Expenses..................................................................38
6.9 Adjustment Procedure..........................................................................39
6.10 Gift Certificates.............................................................................40
6.11 Operating Reserve............................................................................40
ARTICLE VII REPRESENTATIONS AND WARRANTIES............................................................40
7.1 Representations and Warranties of Property Owner and Contributors.............................40
7.1.1 Power and Authority of Property Owner................................................40
7.1.2 Power and Authority of Contributors..................................................41
7.1.3 Ownership of the Equity Interests....................................................41
7.1.4 [Intentionally Omitted]..............................................................41
7.1.5 Deliveries at Closing................................................................41
7.1.6 Requisite Action.....................................................................42
7.1.7 Individuals Authority................................................................42
7.1.8 Tenant Leases........................................................................42
7.1.9 Contracts............................................................................42
7.1.10 Pending Actions......................................................................43
7.1.11 Governmental/Insurance Notices.......................................................43
7.1.12 Condemnation/Rezoning................................................................43
7.1.13 Environmental Law Violations.........................................................43
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7.1.14 Lease Brokerage......................................................................43
7.1.15 No Violations........................................................................43
7.1.16 Operating Agreement..................................................................44
7.1.17 Taxes................................................................................44
7.1.18 Financial/Operating Statements.......................................................44
7.1.19 Delivery of Environmental Reports and Property Condition Reports.....................44
7.1.20 Adjacent Property....................................................................45
7.1.21 Employees............................................................................45
7.1.22 The Company..........................................................................45
7.2 Definition of Property Owner's Knowledge......................................................45
7.3 Survival Period...............................................................................46
7.4 Third Party Information.......................................................................46
7.5 CBL/OP's Knowledge............................................................................47
7.6 Representations and Warranties of CBL/OP......................................................47
7.6.1 Legal Power..........................................................................47
7.6.2 Duly Authorized......................................................................47
7.6.3 Requisite Action.....................................................................47
7.6.4 Individuals Authority................................................................47
ARTICLE VIII OPERATING COVENANTS.......................................................................48
8.1 Insurance.....................................................................................48
8.2 Operation of Property.........................................................................48
8.3 Capital Improvements..........................................................................48
8.4 Leasing.......................................................................................48
8.5 New Contracts.................................................................................49
8.6 Liens.........................................................................................49
8.7 Tenant Lease Defaults; Operating Agreement Defaults...........................................49
8.8 Transfers.....................................................................................49
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8.9 Litigation....................................................................................50
8.10 Schedule and Exhibit Updates..................................................................50
8.11 Company Assets and Liabilities................................................................50
8.12 Employees of the Property Owner...............................................................50
ARTICLE IX "AS-IS" SALE..............................................................................50
9.1 Disclaimer of Representations and Warranties by Property Owner and Contributors...............50
9.2 Sale "As Is"..................................................................................51
9.3 CBL/OP Acknowledgments........................................................................52
9.4 CBL/OP Represented by Counsel.................................................................52
9.5 CBL/OP's Release of Property Owner and Contributors...........................................52
9.5.1 Property Owner and Contributors Released From Liability..............................52
9.5.2 Claims Under Environmental Laws......................................................53
9.5.3 Survival.............................................................................54
ARTICLE X REMEDIES..................................................................................54
10.1 Liquidated Damages; Property Owner's/Contributors' Remedies...................................54
10.2 CBL/OP's Remedies.............................................................................54
10.3 Attorneys' Fees...............................................................................55
10.4 Mutual Post-Closing Indemnities...............................................................55
10.4.1 Definition of Losses.................................................................55
10.4.2 Contributors' Indemnity..............................................................55
10.4.3 Sources for Satisfaction of Contributors' Indemnity..................................56
10.4.4 CBL/OP's Indemnity...................................................................56
10.5 Minimum Amount Requirement for Damages........................................................57
10.6 Limitation of Contributors' Liability.........................................................57
10.7 Limitation of CBL/OP's Liability..............................................................57
10.8 Limited Liability.............................................................................58
ARTICLE XI CONDEMNATION/CASUALTY DAMAGE..............................................................58
11.1 Condemnation..................................................................................58
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11.2 Nonmaterial Condemnation......................................................................58
11.3 Casualty Damage...............................................................................59
ARTICLE XII CBL/OP'S AND ELECTING CONTRIBUTORS' POST-CLOSING COVENANTS................................60
12.1 CBL/OP's Post-Closing Covenants...............................................................60
12.1.1 Electing Contributors Allocation of Portion of CBL/OP's Debt; Allocations of
Code Section 704(c) Tax Items; Certain Income Allocations............................60
12.1.2 Resale Restriction Agreement.........................................................62
12.1.3 Contributors' Tax Positions..........................................................63
12.2 Contributors' Post-Closing Covenants..........................................................63
ARTICLE XIII MISCELLANEOUS.............................................................................63
13.1 Entire Agreement..............................................................................63
13.2 CBL/REIT Board Approval; Agreement Binding on Parties.........................................63
13.3 Notice........................................................................................63
13.4 Time of the Essence...........................................................................64
13.5 Governing Law.................................................................................64
13.6 Currency......................................................................................64
13.7 Section Headings..............................................................................64
13.8 Business Days.................................................................................64
13.9 No Recordation................................................................................64
13.10 Multiple Counterparts; Facsimile..............................................................64
13.11 Severability..................................................................................65
13.12 Limitations on Benefits.......................................................................65
13.13 Interpretation................................................................................65
13.14 Further Actions...............................................................................65
13.15 No Other Inducements..........................................................................66
13.16 Participation in Drafting.....................................................................66
13.17 Exhibits......................................................................................66
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13.18 No Partnership/Fiduciary Relationship.........................................................66
13.19 Conditional Delivery..........................................................................66
13.20 Survival......................................................................................66
13.21 Public Disclosure.............................................................................66
13.22 Appointment of Contributor Representative.....................................................66
EXHIBITS AND SCHEDULES
Schedule I - Intentionally Omitted
Schedule II - Existing Property Owner Debt
Schedule 3.3 - Intentionally Omitted
Schedule 7.1 - Disclosure Schedule
Exhibit A - Legal Description of Land
Exhibit B - Intentionally Omitted
Exhibit C - Special Warranty Deed
Exhibit D - Intentionally Omitted
Exhibit E - Xxxx of Sale and General Assignment
Exhibit F - Federal Transferor's Certificate of Non-Foreign
Status
Exhibit G - Intentionally Omitted
Exhibit H - Intentionally Omitted
Exhibit I - Intentionally Omitted
Exhibit J - List of Service Agreements to be Assumed
Exhibit K - Intentionally Omitted
Exhibit L - Intentionally Omitted
Exhibit M - Intentionally Omitted
Exhibit N - Intentionally Omitted
Exhibit O - Intentionally Omitted
Exhibit P - Intentionally Omitted
Exhibit Q - Intentionally Omitted
Exhibit R - Intentionally Omitted
Exhibit S - Owner's Affidavit
Exhibit T - Intentionally Omitted
Exhibit U - Intentionally Omitted
Exhibit V - Intentionally Omitted
Exhibit W - Intentionally Omitted
Exhibit X - Intentionally Omitted
Exhibit Y - Intentionally Omitted
Exhibit Z - List of Service Contracts
Defined Term
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Accountants......................................................................................................23
Additional Title Objection.......................................................................................11
Additional Title Objections......................................................................................11
Agreement.........................................................................................................1
ALTA Survey.......................................................................................................9
Appurtenances.....................................................................................................1
Assignee..........................................................................................................1
Assignment........................................................................................................1
Assignor..........................................................................................................1
Books and Records.................................................................................................2
Business Days....................................................................................................43
CBL/OP............................................................................................................1
CBL/OP Closing Certificate.......................................................................................18
CBL/OP Closing Conditions........................................................................................16
CBL/OP Parties...................................................................................................29
CBL/OP's Additional Title Objection Notice.......................................................................10
CBL/OP's Address..................................................................................................3
CBL/OP's Information..............................................................................................7
CBL/OP's Surviving Obligations...................................................................................10
CBL/OP's Title Objection Notice..................................................................................10
Claims...........................................................................................................14
Closing..........................................................................................................16
Closing Date......................................................................................................3
Closing Statement................................................................................................25
Commission.......................................................................................................23
Disclosure Schedule..............................................................................................26
Effective.........................................................................................................1
Effective Date....................................................................................................1
Environmental Laws...............................................................................................35
Escrow...........................................................................................................16
Escrow Agent......................................................................................................4
Excluded Documents.............................................................................................8, 2
Excluded Property.................................................................................................2
Existing Environmental Reports...................................................................................28
Existing Property Owner Debt.....................................................................................21
Final Approval Date...............................................................................................3
FIRPTA Certificate...............................................................................................19
Grantee...........................................................................................................1
Grantor...........................................................................................................1
Hazardous Substances.............................................................................................35
Improvements......................................................................................................2
Intangible Property............................................................................................2, 1
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Land..............................................................................................................1
Laws.............................................................................................................27
Notice...........................................................................................................41
Official Records..................................................................................................4
Operating Expenses...............................................................................................24
Permitted Exceptions.............................................................................................13
Permitted Outside Parties.........................................................................................8
Personal Property.................................................................................................2
Prior Reports....................................................................................................28
Property..........................................................................................................1
Property Management Agreement....................................................................................15
Property Owner....................................................................................................1
Property Owner's Address..........................................................................................4
Property Owner's Broker..........................................................................................22
Property Owner's Condition Precedent.............................................................................18
Property Owner's Notice Period...................................................................................10
Property Owner's Property Manager.................................................................................4
Property Owner's Title Notice....................................................................................10
Property Records..................................................................................................8
Proprietary Information...........................................................................................8
Proration and Expense Schedule...................................................................................25
Purchase Price....................................................................................................4
Real Estate Taxes................................................................................................24
Real Property..................................................................................................2, 1
Released Parties.................................................................................................34
Service Contracts..............................................................................................2, 1
Special Exceptions................................................................................................1
Special Warranty Deed............................................................................................19
Survey Exceptions.................................................................................................9
Tenant Leases.....................................................................................................1
Tenant Prospect Commission Obligations...........................................................................15
Title Commitment..................................................................................................9
Title Company.....................................................................................................3
Title Documents...................................................................................................9
Title Objection..................................................................................................10
Title Objection Deadline..........................................................................................3
Title Objections.................................................................................................10
Title Policy.....................................................................................................12
to the knowledge of Property Owner...............................................................................28
Transferee........................................................................................................1
Transferor........................................................................................................1
Unknown Environmental Liabilities................................................................................35
Updated Survey....................................................................................................9
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Voluntary Title Encumbrances.....................................................................................11
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