Exhibit 99.1
CONTRIBUTION AGREEMENT
among
THE XXXXX COMPANY OF NEVADA, INC. ("Xxxxx"),
HRD PROPERTIES, INC. ("HRD"),
XXXXX-XXXXXXXXXXX COMMONS, LLC,
XXXXX-XXXX XXXXXXX HOLDING, LLC,
XXXXX-XXXXXX TOWN CENTER, LLC,
BRIDGEWATER COMMONS MALL, LLC,
XXXXX-FASHION PLACE, LLC,
XXXXX-XXXX XXXXXXX, LLC,
TOWSON TC, LLC,
TTC SPE, LLC
and
FOURMALL ACQUISITION, LLC ("Fourmall"),
Dated as of February 1, 1999
Premises:
Bridgewater Commons Mall, Bridgewater, New Jersey
Park Xxxxxxx Mall, Littleton, Colorado
Xxxxxx Xxxx Xxxxxx Xxxx, Xxxxxx, Xxxxxxxx
Fashion Place Mall, Murray, Utah
This instrument was prepared by:
STROOCK & STROOCK & XXXXX LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
TABLE OF CONTENTS
Page
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1. Certain Definitions....................................................... 2
2. Contribution of Fourmall.................................................. 9
3. Intentionally Deleted..................................................... 10
4. Condition of Title........................................................ 10
5. Closing Date.............................................................. 12
6. Condition of the Property................................................. 12
7. Due Diligence Investigation; Right to Terminate........................... 12
8. Casualty and Condemnation................................................. 13
9. Brokerage................................................................. 14
10. Tax Reduction Proceedings................................................ 14
11. Recording Charges and Transfer Taxes..................................... 14
12. Representations and Warranties........................................... 15
13. Deliveries to be made on the Closing Date................................ 34
14. Intentionally Deleted.................................................... 36
15. Intentionally Deleted.................................................... 36
16. Xxxxx Parties' Default................................................... 36
17. Fourmall's Default....................................................... 36
18. Operations Prior to Closing.............................................. 37
19. Conditions of Fourmall's Obligations to Close............................ 41
20. Conditions of Xxxxx'x Obligations to Close............................... 43
21. Apportionments........................................................... 43
22. Indemnification.......................................................... 46
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23. Survival of Representations.............................................. 47
24. Notices.................................................................. 47
25. Amendments............................................................... 49
26. Governing Law; Construction.............................................. 49
27. Partial Invalidity....................................................... 49
28. Counterparts............................................................. 49
29. No Third Party Beneficiaries............................................. 49
30. Waiver................................................................... 49
31. Assignment............................................................... 49
32. Binding Effect........................................................... 50
33. Entire Agreement......................................................... 50
34. Further Assurances....................................................... 50
35. Paragraph Headings....................................................... 50
EXHIBIT A-1 Legal Description of Bridgewater Commons Mall
EXHIBIT A-2 Legal Description of Fashion Place Mall
EXHIBIT A-2(a) Description of the Ground Leases
EXHIBIT A-2(b) Additional Sums Due under the Ground Leases
EXHIBIT A-3 Legal Description of Park Xxxxxxx
EXHIBIT A-4 Legal Description of Towson Mall
EXHIBIT B Intentionally Deleted
EXHIBIT C The Loan Documents
EXHIBIT D Intentionally Deleted
EXHIBIT E Current Liabilities
EXHIBIT F Permitted Exceptions
EXHIBIT G Title Company and Title Insurance Premiums
EXHIBIT H List of the LLC Documents
EXHIBIT H-1 List of the Organizational Documents of the Holding LLCs and
the Owner LLCs
EXHIBIT I Leasing Commissions
EXHIBIT J Current Tax Bills
EXHIBIT K Exceptions to Environmental Compliance
EXHIBIT L List of Operating Agreements
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EXHIBIT M Tenant Leases
EXHIBIT N Rent Roll
EXHIBIT O Litigation List
EXHIBIT P Insurance Policies and Insurance Claims
EXHIBIT Q Licenses and Permits
EXHIBIT R List of Personalty
EXHIBIT S Liens
EXHIBIT T Financial Statements
EXHIBIT U Compliance with Law
EXHIBIT V PIF Obligations
EXHIBIT W Intentionally Deleted
EXHIBIT X Tax Proceedings
EXHIBIT Y UBTI Income
EXHIBIT Z Form of Amended and Restated LLC Agreement
EXHIBIT AA Form of Property Management Agreement
EXHIBIT BB Additional Land Option Agreement
EXHIBIT CC Indemnity Agreement
EXHIBIT DD TrizecHahn Rights Assignment
EXHIBIT EE Cover Page of Draft Third Amendment
EXHIBIT FF Form of Tenant Estoppel Certificate
EXHIBIT GG Park Xxxxxxx Land Transfer Mall Diagram
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CONTRIBUTION AGREEMENT
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CONTRIBUTION AGREEMENT (this "Agreement"), made as of the 1st day of February,
1999, among THE XXXXX COMPANY OF NEVADA, INC., a Nevada corporation, having an
office c/o The Xxxxx Company, 00000 Xxxxxx Xxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx
00000 (hereinafter "Xxxxx"), HRD PROPERTIES, INC., a Maryland corporation
("HRD"), XXXXX-XXXXXXXXXXX COMMONS, LLC, a Maryland limited liability company
("Bridgewater Holding"), XXXXX-XXXX XXXXXXX HOLDING, LLC, a Maryland limited
liability company ("Park Xxxxxxx Holding"), XXXXX-XXXXXX TOWN CENTER, LLC, a
Maryland limited liability company ("Towson Holding"), TTC SPE, LLC, a Maryland
limited liability company ("TTC SPE"; Xxxxxxxxxxx Xxxxxxx, Xxxx Xxxxxxx Xxxxxxx,
Xxxxxx Holding and TTC SPE are hereinafter individually sometimes referred to as
a "Holding LLC" and collectively as the "Holding LLCs"), BRIDGEWATER COMMONS
MALL, LLC, a Maryland limited liability company ("Bridgewater LLC"), XXXXX-
FASHION PLACE, LLC, a Maryland limited liability company ("Fashion LLC"), XXXXX-
XXXX XXXXXXX, LLC, a Maryland limited liability company ("Park Xxxxxxx LLC"),
TOWSON TC, LLC, a Maryland limited liability company ("Towson LLC"; Fashion LLC,
Park Xxxxxxx LLC, Bridgewater LLC and Towson LLC are sometimes hereinafter
individually referred to as an "Owner LLC" and collectively as the "Owner
LLCs"), and FOURMALL ACQUISITION, LLC, a Delaware limited liability company,
having an office c/o X.X. Xxxxxx Investment Management Inc., 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (hereinafter "Fourmall").
W I T N E S S E T H :
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WHEREAS, Xxxxx and HRD are all of the members of Four State Properties, LLC, a
Delaware limited liability company (the "LLC");
WHEREAS, Xxxxx has heretofore contributed to the LLC the following interests
in the following limited liability companies which, directly or indirectly, own
the Property (as hereinafter defined): (1) one hundred (100%) percent of the
membership interests in Fashion LLC, which owns (y) fee simple title with
respect to a portion of Fashion Place Mall and (z) ground lessee interests with
respect to the remainder of Fashion Place Mall; (2) one hundred (100%) percent
of the membership interests in Park Xxxxxxx Holding, which owns one hundred
(100%) percent of the membership interests in Park Xxxxxxx LLC, which owns fee
simple title to Park Xxxxxxx; (3) one hundred (100%) percent of the membership
interests in Bridgewater Holding, which owns one hundred (100%) percent of the
membership interests in Bridgewater LLC, which owns fee simple title to
Bridgewater Commons; (4) one hundred (100%) percent of the membership interests
in Towson Holding, which owns ninety nine and one-half (99-1/2%) percent of the
membership interests in Towson LLC, which owns fee simple title to Towson Mall;
and (5) ninety-nine (99%) percent of the membership interests in TTC SPE, which
owns one-half of one percent of the membership interests in Towson LLC.
WHEREAS, Fourmall desires to contribute the Fourmall Initial Capital
Contribution (as hereinafter defined) to the LLC, to acquire, in consideration
therefor, sixty-five percent (65%) of the membership interests in the LLC (the
"Fourmall LLC Interests");
NOW THEREFORE, in consideration of the mutual covenants contained herein, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Xxxxx Parties (as hereinafter defined) and Fourmall agree
as follows:
1. Certain Definitions. For purposes of this Agreement, the following terms
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shall have the respective meanings set forth below:
"Actions" mean any claims, actions, suits, proceedings or investigations,
whether at law, in equity or in admiralty or before any court, arbitrator,
arbitration panel or Governmental Authority.
"Affiliate" of a party means any Person which, directly or indirectly,
controls, is controlled by or is under common control with, such party.
"Adjoining Land" means, collectively, any land in the bed of any street,
road, avenue, open or proposed, public or private, in front of or adjoining the
Land, the Ground Leases or any portion thereof, to the center line thereof, and
any award to be made in lieu thereof and in and to any unpaid award for damage
to the Land, the Ground Leases or Buildings by reasons of change of grade of any
street occurring after the date of execution and delivery of this Agreement, but
only to the extent, if any, of any Owner LLC's interest therein.
"Appurtenances" means, collectively, all easements, rights of way,
privileges, appurtenances, strips, gores and other rights pertaining to the
Land, Ground Leases, Buildings and Adjoining Land, if any, including, without
limitation, development rights, and all income therefrom.
"Assets" means the Property and all the assets, properties, rights and
business of the LLC and the Owner LLCs of every kind and description, wherever
located, including, without limitation, all property, tangible or intangible,
real, personal or mixed.
"Bridgewater Commons" means that certain real property located in
Bridgewater, New Jersey, commonly known as Bridgewater Commons Mall, as more
particularly described in Exhibit A-1 annexed hereto and made a part hereof, and
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the Appurtenances and Adjoining Land, if any, related thereto.
"Bridgewater XXXXX" means (i) Bridgewater Commons Construction, Operation
and Reciprocal Easement Agreement, dated February 24, 1988, and recorded in the
Somerset County Clerk's Office on November 9, 1988 in Deed Book 1708, Page 388;
(ii) Separate Agreement, dated February 24, 1988, between Bridgewater Commons
Associates ("BCA") and ADCOR Realty Corporation; and (iii) Separate Agreement,
dated February 24, 1988, between BCA and Macy's Northeast, Inc.
"Bridgewater Declaration" means that certain Declaration of Easements by
EWH 1979 Development Company, L.P., recorded on November 7, 1986, in Deed Book
1603, Page 1, as re-recorded on November 17, 1986, in Deed Book 1604, Page 177,
as amended by
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Amendment to Declaration of Easements, dated February 23, 1988 and recorded on
November 9, 1988 in Deed Book 1708, Page 343.
"Bridgewater Redevelopment Plan" means that certain Redevelopment Plan
for the Bridgewater Regional Center, prepared for the Bridgewater Township
Redevelopment Agency (the "Redevelopment Agency"), dated September, 1973, and
recorded in Deed Book 1450, Page 389, adopted by the Township of Bridgewater
(the "Township") on November 19, 1973, as amended by Ordinance No. 87-5, adopted
by the Township on March 2, 1987, as further amended by Ordinance No. 89-12,
adopted by the Township on June 19, 1989, as further amended by Ordinance
No. 97-6, enacted by the Township on May 15, 1997.
"Bridgewater Revised Contract" means that certain First Amended and
Restated Contract for Sale of Land for Private Redevelopment, dated April 27,
1985, between the Township and Xxxxxx X. Xxxx, Inc., as assigned on April 27,
1985 to EWH 1979 Development Company ("EWH"), as further assigned on October 17,
1986, by EWH to BCA, as amended pursuant to First Amendment of First Amended and
Restated Contract for Sale of Land for Private Redevelopment and Second
Amendment of First Amended and Restated Contract for Sale of Land for Private
Redevelopment, each dated April 20, 1986, between the Township and BCA, as
further amended pursuant to Third Amendment of First Amended and Restated
Contract for Sale of Land for Private Redevelopment, dated March 5, 1987,
between the Township and BCA, as further amended pursuant to Fourth Amendment of
First Amended and Restated Contract for Sale of Land for Private Redevelopment,
dated June 19, 1989, between the Township and BCA, as further amended pursuant
to Fifth Amendment of First Amended and Restated Contract for Sale of Land for
Private Redevelopment, dated August 7, 1991, between the Township and BCA, as
further amended pursuant to Sixth Amendment of First Amended and Restated
Contract for Sale of Land for Private Redevelopment, dated March 14, 1995,
between the Township and BCA, as further amended pursuant to Revised Contract of
Sale of Land for Private Development, dated June 16, 1997, between the Township
and BCA, and recorded on June 19, 1997, in Deed Book 2117, Page 338.
"Buildings" means, collectively, all buildings and improvements located
on the Land.
"Closing" means the closing of the transactions contemplated hereby,
which shall take place at the offices of Stroock & Stroock & Xxxxx LLP, 000
Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, on the Closing Date at 10:00 A.M.,
or at such other time or place as the parties may agree upon in writing.
"Closing Date" means February 1, 1999.
"Code" means the Internal Revenue Code of 1986, as amended.
"XXXXX" means each of the Bridgewater XXXXX, the Fashion Place XXXXX, the
Park XXXXX and the Towson XXXXX (hereinafter collectively referred to as the
"XXXXXx").
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"Court Order" means any judgment, decree, injunction, order, decision,
directive, regulation or ruling of any Governmental Authority that is binding on
any Person or its property under Law.
"Damages" mean losses, liabilities, costs, damages, claims and expenses
(including reasonable attorneys' fees and disbursements).
"Default" means (i) a breach of or default under any contract, agreement,
covenant, document or other instrument, (ii) the occurrence of an event that
with the passage of time or the giving of notice or both would constitute a
breach of or default under any such contract, agreement, covenant, document or
other instrument, or (iii) the occurrence of an event that with or without the
passage of time or the giving of notice or both would give rise to a right of
termination, renegotiation or acceleration under any such contract, agreement,
covenant, document or other instrument.
"Detention Basin Agreement" means that certain Detention Basin Access and
Maintenance Agreement, between BCA and Somerset County Board of Chosen
Freeholders, as set forth in Deed Book 1659, Page 195 of the Somerset County
Clerk's Records.
"Documents" means any and all plans and specifications, agreements,
drawings and other materials related to the Buildings, warranties for the
Buildings and Personalty, current surveys of the Land and Buildings, current
catalogs, current booklets, manuals, files, logs, records, material
correspondence with existing tenants and other material correspondence, current
tenant lists, current tenant prospect lists and other mailing lists, current
sales brochures and material, current leasing brochures and materials, current
advertising materials and other items, including without limitation, title
information, soil, engineering and environmental inspections in the possession
of Xxxxx Parties, studies and reports, market studies, and similar inspections
with respect to the sale, management, leasing, promotion, ownership,
maintenance, use, occupancy and operation of the Premises in the possession of
Xxxxx Parties.
"Environmental Laws" mean all federal, state, local and foreign
environmental, health and safety laws, codes and ordinances and all rules and
regulations promulgated thereunder, including, without limitation laws relating
to emissions, discharge, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or wastes
into the environment (including, without limitation, air, surface water, ground
water, land surface or subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals, or industrial,
solid, toxic or hazardous substances or wastes. As used in this Agreement, the
term "Hazardous Substances or Wastes" includes, without limitation, (i) all
substances which are designated pursuant to Section 311(b)(2)(A) of the Federal
Water Pollution Control Act ("FWPCA"), 33 U.S.C. (S)1251 et seq.; (ii) any
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element, compound, mixture, solution, or substance which is designated pursuant
to Section 102 of the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. (S)9601 et seq.; (iii) any hazardous waste
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having the characteristics which are identified under or listed pursuant to
Section 3001 of the Resource Conservation and Recovery Act ("RCRA"), (S)6901 et
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seq.; (iv) any toxic pollutant listed under Section 307(a) of the FWPCA; (v) any
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hazardous air pollutant which is listed under Section 112 of the Clean Air Act,
42 U.S.C. (S)7401 et seq.; (vi) any imminently hazardous chemical substance or
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mixture with respect to which action has been taken pursuant to Section 7 of the
Toxic Substance Control Act, 15 U.S.C. (S)2601 et seq.; and (vii) petroleum,
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petroleum products, petroleum by-products, petroleum decomposition by-products,
and waste oil; (viii) "hazardous materials" within the meaning of the Hazardous
Materials Transportation Act, 49 U.S.C. (S) 1802 et seq., (ix) any hazardous
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substance or material identified or regulated by or under any applicable
provisions of the laws of the state in which any portion of the Premises is
located; (x) asbestos or any asbestos containing materials; (xi) any radioactive
material or substance; (xii) all toxic wastes, hazardous wastes and hazardous
substances as defined by, used in, controlled by or subject to all implementing
regulations adopted and publications promulgated pursuant to the foregoing
statutes; and (xiii)any other hazardous or toxic substance or pollutant
identified in or regulated under any other applicable federal, state or local
Laws.
"Existing Lenders" means the lender under any of the Loan Documents.
"Fashion Place XXXXX" means (i) Construction, Operation and Reciprocal
Easement Agreement, dated and recorded on June 14, 1971 as Entry 2391096, in
Book 2968 at Page 466, in the Official Records of the Salt Lake County Recorder,
affecting Fashion Place Mall; (ii) Amendment #1 to Construction, Operation and
Reciprocal Easement Agreement, dated April 19, 1973 and recorded on May 15,
1973, as Entry 2539860, in Book 3326 at page 150; (iii) Amendment #2 to
Construction, Operation and Reciprocal Easement Agreement, dated February 8,
1988, and recorded on February 9, 1988, as Entry 4584396, in Book 6002 at page
2737; (iv) REA Assignment and Assumption Agreement, dated March 16, 1993,
between Xxxxxx Xxxxxx Stores, Inc. to Xxxxxxx Department Stores, Inc.
("Dillard"), recorded March 16, 1993 as Entry 5455755 in Book 6620 at page 1952;
(v) unrecorded Supplemental Agreement dated March 16, 1993 with Dillard;
(vi) unrecorded and undated Agreement between Fashion Place Associates and Sears
Xxxxxxx and Co. ("Sears"); (vii) unrecorded letter agreement, dated March 15,
1993, between Fashion Place Associates and Mervyn's; (viii) unrecorded
Supplement to Construction, Operation and Reciprocal Easement Agreement, dated
February 8, 1988, between Fashion Place Associates and Nordstrom, Inc.
("Nordstrom"); (ix) unrecorded Mervyn's Supplemental Agreement, dated March 16,
1993; (x) unrecorded Master Transactions Agreement, dated January 18, 1993,
among Fashion Place Associates, Mervyn's, Xxxxxx Xxxxxx Xxxx Stores Inc. and
Dillard; (xi) undated Letter Agreement with Mervyn's; (xii) unrecorded
Termination of Rights Agreement, dated February 17, 1998, between Fashion Place
Associates and Mervyn's; (xiii) Encroachment Agreement, dated February 23, 1972,
recorded March 29, 1972 as Entry 2446043 in Book 3056 at page 179, among Fashion
Place Associates, Sears and Xxxxxxxx Company.
"Fashion Place Mall" means that certain real property located in Murray,
Utah, commonly known as Fashion Place Mall, as more particularly described in
Exhibit A-2, annexed hereto and made a part hereof, and the Appurtenances and
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Adjoining Land, if any, related thereto.
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"Fourmall LLC Interests" means sixty-five percent (65%) of the limited
liability company interests in the LLC.
"Funds" means collectively, all funds which Xxxxx Parties shall, at
Closing, have on deposit with any person or entity (including, without
limitation, any lender) to be applied to, for or in connection with the Property
or any loan secured by the Premises.
"Governmental Authority" means any agency, instrumentality, department,
commission, court, tribunal or board of any government, whether foreign or
domestic and whether national, federal, state, provincial or local.
"Ground Leases" means those certain ground leases described in Exhibit
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A-2(a) annexed hereto and made a part hereof affecting Fashion Place Mall.
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"Hypo Bank" means Bayerische Hypotheken-Und Wechsel-Bank
Aktiengesellschaft.
"Hypo Bank Lien" means that certain lien in favor of Hypo Bank, pursuant
to that certain Assignment in Respect of Limited Liability Company, dated July
31, 1998, encumbering the limited liability company interests in Park Xxxxxxx
LLC.
"IDOT Borrower" means Xxxxx-TTC Funding, LLC, a Maryland limited
liability company.
"Land" means all that certain real property described in Exhibits A-1,
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X-0, X-0 xxx X-0 annexed hereto and made a part hereof.
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"Laws" mean all laws, statutes, rules, regulations, codes, orders,
ordinances, judgments, injunctions, decrees and policies.
"Liabilities" mean debts, liabilities, obligations, guarantees,
indemnities, duties and responsibilities of any kind and description, whether
absolute or contingent, monetary or non-monetary, direct or indirect, known or
unknown or matured or unmatured, or of any other nature.
"Licenses and Permits" means collectively, all assignable licenses,
permits, approvals and certificates issued by any governmental authorities
required or used in or relating to the ownership, use, maintenance, occupancy or
operation of any part of the Premises.
"Lien" means any security interest, lien, mortgage, claim, charge,
pledge, restriction, equitable interest, restrictive covenant or encumbrance of
any nature.
"LLC Agreement" means the limited liability company agreement of the LLC
as in effect immediately prior to the effectiveness of this Agreement.
"LLC Certificate" means the articles of organization or limited liability
company certificate of the LLC, filed with the Secretary of State of the State
of Delaware.
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"LLC Documents" means all of the documents governing the structure and
organization of the LLC, including, without limitation, the LLC Agreement and
the LLC Certificate and all documents evidencing the authority of the LLC to
conduct business in any state other than the state of its organization.
"Loan Documents" means all Mortgages, notes, assignments and other
documents and instruments evidencing and/or securing any obligation of the LLC,
any Owner LLC, TTC SPE, any Holding LLC or the IDOT Borrower or affecting the
Property (or any portion thereof), as more particularly described in Exhibit C
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annexed hereto and made a part hereof, and all rights and privileges of Xxxxx
Parties and their Affiliates thereunder.
"Mall" means any one of Bridgewater Commons, Park Xxxxxxx, Fashion Place
Mall or Towson Mall.
"Mortgages" means those certain deeds of trust, indemnity deed of trust
and/or mortgages encumbering the Property or any portion thereof on the date
hereof.
"Names" means all of Xxxxx Parties' right, title and interest in and to
the names "Bridgewater Commons," "Park Xxxxxxx Mall," "Towson Town Center Mall"
and "Fashion Place Mall."
"Operating Agreements" means all reciprocal easement agreements, XXXXXx,
development agreements, concession agreements, operating agreements, service
agreements, maintenance agreements and any other contracts and agreements
affecting the Premises designated by Fourmall and all income therefrom.
"Park XXXXX" means (i) Construction, Operation and Reciprocal Easement
Agreement, dated and recorded on August 22, 1995 in Book 1283 at page 746;
(ii) Assignment and Assumption, dated February 2, 1996 and recorded in Book
1318, page 1442, between Dillard, as assignor and Condev West, Inc., as
assignee; (iii) Amendment No. 1 to Construction, Operation and Reciprocal
Easement Agreement, dated and recorded on May 30, 1996 in Book 1345, page 291;
(iv) Amendment No. 2 to Construction, Operation and Reciprocal Easement
Agreement, dated and recorded on June 2, 1997 in Book 1436, page 10, re-recorded
on October 3, 1997 in Book 1471, page 269; (v) unrecorded Supplemental
Agreement, dated May 30, 1996, between Park Xxxxxxx Mall, Ltd. ("Park Ltd."),
Mercantile Properties, Inc. ("Mercantile") and The Xxxxxx Dry Goods Company
("Xxxxxx"); (vi) unrecorded Separate Agreement, dated August 22, 1995,between
Park Ltd. and Nordstrom (as evidenced by Memorandum of Separate Agreement
recorded on August 22, 1995 in Book 1283, p. 90 as Reception #539127);
(vii) unrecorded Consent Agreement, dated April 2, 1997, among Park Ltd., Penney
and Nordstrom; (viii) unrecorded Supplemental Agreement, dated August 22, 1995,
between Park Ltd. and Dillard; (ix) unrecorded Separate Agreement, dated June 2,
1997, between Park Ltd. and May Department Store Company ("May Company");
(x) Assignment and Assumption of Operating Agreements, dated as of September 9,
1998 between Mercantile/Xxxxxx and May Company; (xi) undated, unrecorded
Separate Agreement with Penney (pursuant to an escrow letter, dated July 29,
1998 between Penney and Xxxxxxx & Xxxxxxx, the Xxxxxx Separate Agreement will be
held in escrow pursuant to the terms of a Purchase and Sale Agreement, dated
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July 27, 1998, between Park Ltd. and Penney) and (xii) Purchase and Sale
Agreement, dated July 27, 1998, between Park Ltd. and Penney.
"Park Xxxxxxx" means that certain real property located in Littleton,
Colorado, commonly known as Park Xxxxxxx Mall, as more particularly described in
Exhibit A-3 annexed hereto and made a part hereof, and the Appurtenances and
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Adjoining Land, if any, related thereto.
"Pedestrian Bridge Agreement" means that certain Pedestrian Bridge
Agreement, dated July 28, 1987, between Xxxxxxx Valley Partnership and
Towsontown Centre, recorded among the Land Records of Baltimore County on
November 2, 1987 in Liber 7713, folio 306.
"Penney" means X.X. Xxxxxx Properties, Inc.
"Person" means any natural person, corporation, business trust, joint
venture, association, company, limited liability entity, firm, partnership, or
other entity or government or Governmental Authority.
"Personalty" means, collectively, the fixtures, equipment, machinery,
furniture, furnishings, appliances, supplies and other items of personal
property (and replacements thereof), now owned or hereafter acquired by the
Owner LLCs and contained in or on, or used in connection with, the ownership,
maintenance, use, occupancy and operation of the Premises.
"Premises" means, collectively, the Land, Ground Leases, Buildings,
Appurtenances and Adjoining Land.
"Property" means all of the LLC's, Owner LLCs' and Holdings LLCs' right,
title and interest in, to and under the following: the Premises, the Personalty,
the Tenant Leases, the Operating Agreements, the Documents, the Licenses and
Permits, the Funds, the Loan Commitments, the Loan Documents, the Names, the
Proprietary Rights, the Residual Rights and the TrizecHahn Rights.
"Property Management Agreements" means collectively, those four certain
property management agreements in the form of Exhibit AA attached hereto and
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made a part hereof, each between the applicable Owner LLC, as owner, and Xxxxx
Property Management, Inc., a Maryland corporation, as property manager, with
respect to each Mall.
"Proprietary Rights" means all trade names, trademarks, service marks,
patents or copyrights and any applications for any of the foregoing and all
internet web sites and intellectual property rights.
"Residual Rights" means any other rights, title and interest, if any, in
and to Premises, the Personalty, the Tenant Leases, the Operating Agreements,
the Documents, the Licenses and Permits, the Funds, the Loan Documents, the
Names, the Proprietary Rights held by Xxxxx Parties and the rights of Xxxxx
Parties in and to any claims, counterclaims and litigations brought by Xxxxx
Parties.
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"Xxxxx Parties" means, collectively, Xxxxx, the Owner LLCs, the Holding
LLCs, IDOT Borrower and TTC SPE.
"Taxes" mean all taxes, charges, fees, levies or other assessments,
including, without limitation, income, gross receipts, excise, real and personal
property, sales, transfer, recordation, deed, stamp, license, payroll and
franchise taxes, imposed by any Governmental Authority and shall include any
interest, penalties or additions to tax attributable to any of the foregoing.
"Tenants" means the tenants under the Tenant Leases (each, individually,
a "Tenant").
"Tenant Leases" means all agreements (written or oral) in the nature of
space leases, subleases, lettings, licenses, guaranties, permits, franchises,
concessions or occupancy agreements, and all amendments, modifications,
supplements, additions, extensions, renewals and side letters thereof or
thereto, and, except as expressly provided herein, security and other deposits
thereunder, affecting the Property (each, individually, a "Tenant Lease").
"Towson XXXXX" means (i) Construction, Operation and Reciprocal Easement
Agreement, dated December 28, 1990 and recorded, in Liber 8683, folio 001;
(ii) First Amendment to Construction, Operation and Reciprocal Easement
Agreement, dated November 9, 1994, and recorded in Liber 10863, folio 350;
(iii) unrecorded Xxxxx'x Separate Agreement, dated December 28, 1990, between
Towson Town Center Associates ("Towson Associates") and May Company and
(iv) unrecorded Separate Agreement, dated December 28, 1990, between Towson
Associates and Nordstrom.
"Towson Mall" means that certain real property located in Towson,
Maryland, commonly known as Towson Town Center Mall, as more particularly
described in Exhibit A-4 annexed hereto and made a part hereof, and the
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Appurtenances and Adjoining Land, if any, related thereto.
"TrizecHahn Contract Rights" means all rights of and benefits to Xxxxx
Parties and any Affiliates thereof in, to and under that certain Asset Purchase
Agreement, dated as of April 6, 1998, between TrizecHahn Centers Inc. ("THCI")
and The Xxxxx Company and Westfield America, Inc., as amended and/or assigned
and all documents and instruments related thereto, including, without
limitation, all representation and indemnifications inuring to the benefit of
Xxxxx Parties and any Affiliates thereof.
"TTC Member" means TTC Member, Inc., a Maryland corporation.
2. Contribution of Fourmall.
------------------------
(a) Based upon and subject to the terms, agreements, warranties,
representations and conditions of this Agreement, Fourmall shall contribute the
sum of Two Hundred Seventy-Three Million Two Hundred Twelve Thousand Two Hundred
Thirty-Two and 01/100 Dollars ($273,212,222.01) (the "Fourmall Initial Capital
Contribution"), subject to adjustments in
-9-
accordance with the provisions of this Agreement, to the LLC, and in
consideration therefor, Fourmall shall be admitted as a member of the LLC and
shall acquire the Fourmall LLC Interests. For purposes of this Agreement, the
Fourmall Initial Capital Contribution shall be allocated among Xxxxxxxxxxx
Xxxxxxx, Xxxx Xxxxxxx, Xxxxxx Mall and Fashion Place Mall as follows: twenty-
nine and 36/100 percent (29.36%) shall be allocated to Bridgewater Commons;
twenty-nine and 3/100 percent (29.03%) shall be allocated to Park Xxxxxxx;
twenty-six and 88/100 percent (26.88%) shall be allocated to Towson Mall and
fourteen and 73/100 percent (14.73%) shall be allocated to Fashion Place Mall.
(b) The Fourmall Initial Capital Contribution in respect of the LLC
Interests shall be paid to the LLC on the Closing Date (as the same may be
adjusted in accordance with the provisions of this Agreement), by wire transfer
of immediately available federal funds to an account or accounts designated by
Xxxxx. Xxxxx shall provide wiring instructions to Fourmall at least five (5)
business days prior to the Closing Date. Any adjustments and apportionments
required to be made pursuant to this Agreement that cannot be determined as of
the Closing Date shall be estimated, such estimate to be mutually agreed upon by
Xxxxx and Fourmall, but subject to readjustment pursuant to Section 21.
(c) The Fourmall Initial Capital Contribution shall be applied by the
LLC to pay and discharge certain financing obtained by Xxxxx Company and its
Affiliates in connection with the acquisition of portions of the Property, which
have been assumed by the LLC and are described in further detail on Exhibit E
---------
attached hereto and made a part hereof (the "Qualified Liabilities").
(d) The provisions of this Section 2 shall survive the Closing.
3. Intentionally Deleted.
---------------------
4. Condition of Title.
------------------
(a) From and after the date hereof, Xxxxx Parties shall not, without the
prior written consent of Fourmall which may be granted or withheld in Fourmall's
sole and absolute discretion: (i) initiate, support or acquiesce in any zoning
reclassification of the Land or the Buildings, seek any variance under existing
zoning ordinances applicable to the Land or the Building or use or permit the
use of the Premises in a manner which would result in such use becoming a non-
conforming use under applicable zoning ordinances, (ii) modify, amend or
supplement any of the items set forth on Exhibit F annexed hereto and made a
---------
part hereof (the "Permitted Exceptions"), (iii) impose or suffer to be imposed
any liens, restrictions, easements, restrictive covenants or encumbrances upon
the Premises, or execute or file any subdivision plat affecting the Land or the
Buildings or consent to the annexation of the Land or the Buildings to any
municipality, (iv) permit or suffer the Premises to be used by the public or any
person in such manner as might make possible a claim of adverse usage or
possession or of any implied dedication or easement, or (v) impose or suffer to
be imposed, any liens or encumbrances on the membership interests in the Owner
LLCs or the Holding LLCs.
-10-
(b) Xxxxx Parties shall forthwith undertake, with due diligence, to
eliminate all title exceptions appearing in the title insurance reports
delivered to Fourmall other than the Permitted Encumbrances (the "Title
Exceptions"). As a condition to Fourmall's obligation to close hereunder, at the
Closing, the Owner LLCs shall have good, marketable and insurable title to the
Premises, subject only to the Permitted Encumbrances, insured by the title
companies set forth on Exhibit G (collectively, the "Title Company"), pursuant
---------
to ALTA owner's policies or lessee's policies (only with respect to those
portions of the Fashion Place Mall portion of the Property encumbered by the
Ground Leases) of title insurance insuring the title of the Owner LLCs in the
Premises, without exceptions or reservations of any kind, including, without
limitation, the standard preprinted exceptions to the title policy, except the
Permitted Encumbrances, together with such endorsements (including non-
imputation, Fairway and coinsurance endorsements) and reinsurance agreements as
Fourmall may require (collectively, the "Title Policy").
(c) If the aforementioned title insurance reports disclose judgments,
liens or bankruptcies against other persons having names the same as or similar
to that of the applicable Owner LLC, such Owner LLC, on request, shall deliver
to Fourmall and the Title Company affidavits showing that such judgments, liens
or bankruptcies are not against such Owner LLC, as the case may be. The Owner
LLCs also shall deliver any affidavits and documentary evidence required by the
Title Company to eliminate all exceptions other than the Permitted Exceptions
appearing in its title report.
(d) If Xxxxx Parties, after using best efforts (which shall not require
aggregate expenditure by Xxxxx Parties in excess of the Cure Amount, as defined
below), shall be unable to eliminate any one or more of the Title Exceptions in
accordance with the terms of this Agreement by the Closing Date, Fourmall may
waive such Title Exceptions and proceed to Closing or Xxxxx may adjourn the
closing, by written notice to Fourmall, for a period or periods not to exceed in
the aggregate sixty (60) days, in order to eliminate such Title Exceptions. To
the extent any unwaived Title Exceptions may be removed by the payment of a
liquidated sum of money (the "Liquidated Title Exceptions"), Xxxxx Parties shall
expend up to Two Million Five Hundred Thousand and 00/100 Dollars ($2,500,000)
(the "Cure Amount") to remove the Liquidated Title Exceptions. The limitation
set forth in the preceding sentence shall not apply to Title Exceptions which
are (i) mortgages, deeds of trusts and/or indemnity deeds of trust, except for
the Mortgages, (ii) liens created by, through or under Xxxxx Parties or
(iii) any Title Exceptions voluntarily created or consented to by Xxxxx Parties
after the date hereof (the Title Exceptions described in clauses (i), (ii) and
(iii) are hereafter collectively referred to as the "Defects"), which Xxxxx
Parties are obligated in all events to remove of record on or before the Closing
Date. If, pursuant to the terms of this Agreement, Xxxxx Parties do not elect or
are unable to eliminate any Title Exceptions (the "Remaining Title Exceptions")
other than the Defects and the Liquidated Title Exceptions, then Xxxxx shall so
notify Fourmall, and Fourmall may thereafter, at their option (which option
shall be set forth in a notice from Fourmall to Xxxxx given not later than
thirty (30) days after receipt of Xxxxx Parties' notice): (1) terminate this
Agreement; (2) accept title to the Premises subject to the Remaining Title
Exceptions; or (3) reject any Mall for which Xxxxx Parties are unable or
unwilling to eliminate the Title
-11-
Exceptions (other than the Defects and the Liquidated Title Exceptions) (each a
"Rejected Mall").
(e) In the event Fourmall shall elect to reject any Rejected Mall
(i) this Agreement and the obligations hereunder shall terminate with respect to
any such Rejected Mall only and, (ii) Fourmall's Capital Contribution shall be
reduced by an amount equal to Fourmall's Capital Contribution multiplied by the
allocated percentage for such Rejected Mall as specified in Section 2 hereof.
5. Closing Date. The Closing shall take place on the Closing Date at
------------
10:00 A.M., subject to Fourmall's right to extend the Closing Date to a date not
more than fifteen (15) days after the Designated Date (as defined in Section 7).
6. Condition of the Property. On the Closing Date, the Property shall be
-------------------------
"as is" on the date hereof, subject to reasonable use, wear, tear and natural
deterioration between the date hereof and the Closing Date.
7. Due Diligence Investigation; Right to Terminate.
-----------------------------------------------
(a) Xxxxx Parties shall permit Fourmall and/or Fourmall's consultants,
accountants, auditors, attorneys, agents and other representatives ("Fourmall's
Representatives") to, from time to time, during regular business hours and on
reasonable prior notice to Xxxxx, inspect all areas of the Property and perform
tests, investigations, surveys and examinations (including, without limitation,
physical inspections, environmental assessments and engineering studies of the
structural elements of the Buildings, mechanical, electrical, fire and life
safety systems, and compliance with the Americans with Disabilities Act).
Fourmall shall use reasonable efforts to perform such tests in a manner which
shall not unreasonably interfere with the use and occupancy of Tenants under
Tenant Leases. The scope, sequence and timing of the physical inspections set
forth above shall be at the sole discretion of Fourmall, except that such
inspections shall be conducted in coordination with Xxxxx Parties'
representatives. Fourmall shall repair any damage to the Premises caused by
Fourmall or Fourmall's Representatives during the performance of the due
diligence by Fourmall or Fourmall's Representatives.
(b) Xxxxx Parties shall permit Fourmall's Representatives to examine
Xxxxx Parties' books, financial records, property records, Tenant files,
operating files and maintenance and management records, including, without
limitation, the Tenant Leases, notices, insurance policies, bills, invoices,
receipts and other general records relating to the income and expenses of the
Property, correspondence, surveys, plans and specifications, warranties for
services and materials provided to the Property, engineering reports,
environmental audits and similar materials that Fourmall shall reasonably
require with respect to the operation and management of the Property at any time
and from time to time prior to the Closing. Fourmall's Representatives shall be
permitted access to (and be permitted to make copies of) such records during
regular business hours on reasonable prior notice (which may be verbal) to Xxxxx
Parties. Xxxxx Parties shall make available to Fourmall such information as
Xxxxx Parties may have with respect to actual expenditures made on all repairs,
maintenance, operation and upkeep of the Property,
-12-
including, without limitation, all taxes and utility payments and dates of
construction, installation and major repairs to the Property.
(c) Any provision herein to the contrary notwithstanding, in the event
that Closing has not been consummated hereunder, Fourmall shall have the
absolute right to terminate this Agreement for any reason or for no reason in
its sole and absolute discretion upon written notice delivered to Xxxxx prior to
February 12, 1999 (the "Designated Date"). Upon the giving of such notice, this
Agreement shall terminate and none of the parties to this Agreement shall have
any further rights or obligations hereunder except as otherwise expressly
provided herein. The right of Fourmall to terminate this Agreement as provided
under this subsection (c) shall be in addition to any other right of Fourmall to
terminate this Agreement as provided elsewhere in this Agreement. In the event
Fourmall elects to terminate this Agreement, Fourmall shall either promptly
return to Xxxxx any materials and documents provided to Fourmall by Xxxxx, or
certify to Xxxxx that all such materials and documents have been destroyed.
8. Casualty and Condemnation.
-------------------------
(a) Notwithstanding anything to the contrary implied or provided by law
or in equity, if, prior to the Closing, the Property or any material portion
thereof is impaired by fire, the elements or any other casualty or if any
material portion of the Premises is taken by eminent domain or otherwise,
Fourmall shall have the right by written notice to Xxxxx, given not later than
thirty (30) days after the receipt by Fourmall of Xxxxx Parties' notice
describing such material impairment or taking, to either (i) terminate this
Agreement or (ii) elect to reject any such Mall so affected by any such material
impairment or taking, in which case (A) this Agreement and the obligations
hereunder shall terminate with respect to any such Mall so affected by any such
material impairment or taking and (B) Fourmall's Capital Contribution shall be
reduced by an amount equal to Fourmall's Capital Contribution multiplied by the
allocated percentage for such Mall affected by such material impairment or
taking. If Fourmall shall not terminate this Agreement in whole or in part, this
Agreement shall remain in full force and effect and the parties shall
nonetheless proceed to the Closing in accordance with this Agreement; provided,
--------
however, Fourmall shall receive a credit against the Purchase Price in an amount
-------
equal to the uninsured amounts of such casualty, including, without limitation,
any insurance deductible amount.
(b) Xxxxx Parties shall promptly notify Fourmall of any such casualty
and of any proposed taking. Fourmall shall be given an opportunity to
participate in all discussions, meetings and proceedings with the insurer of any
casualty and with the governmental or quasi-governmental authority proposing a
taking. Xxxxx Parties shall not make any settlement with respect to a casualty
or a taking without Fourmall's prior written consent.
(c) For purposes of this Section 8, a casualty or condemnation shall be
deemed material (i) if the amount of the loss or claim arising as a result
thereof shall exceed One Million and 00/100 Dollars ($1,000,000.00) or (ii) if
it results in the termination of any one or more Tenant Leases having an annual
rental income in the aggregate exceeding $150,000 or (iii) if it results in the
right of any party (other than Xxxxx Parties) to any COREA to cease such
-13-
party's operations at any Mall. The parties hereby waive the provisions of any
statute which provides for a different outcome or treatment in the event of a
casualty or a taking.
(d) The provisions of this Section 8 shall survive the Closing.
9. Brokerage. Xxxxx Parties and Fourmall each represent and warrant to one
---------
other that it has not dealt with any broker or other intermediary in connection
with or relating to the sale and purchase which is the subject of this
Agreement. Xxxxx Parties and Fourmall shall each defend, indemnify and hold the
other harmless from and against any and all liability, claim, charge or damages,
including without limitation, reasonable counsel fees and court costs, incurred
by the other as a result of any breach by the indemnitor of the foregoing
representation. The provisions of this Section 9 shall survive the Closing, or
if the Closing does not occur, the termination of this Agreement.
10. Tax Reduction Proceedings. Xxxxx Parties shall not, without the prior
-------------------------
written consent of Fourmall, which consent shall not be unreasonably withheld or
delayed, commence, withdraw, compromise or settle any proceedings for the
reduction of the assessed valuation of the Premises for any fiscal period in
which the Closing is to occur or any later period, but may enter into a
settlement or a compromise of real estate taxes or assessments for any fiscal
period prior to the fiscal year in which the Closing is to occur unless such
settlement or compromise would materially and adversely affect the fiscal period
in which the Closing is to occur and/or any subsequent fiscal period. Any refund
or the savings for any year or years prior to the tax year in which the Closing
occurs, to the extent not payable to any Tenants pursuant to the terms of any
Tenant Leases, shall belong solely to Xxxxx Parties. Any refund or the savings
for the tax year in which the Closing occurs, to the extent not payable to any
Tenants pursuant to the terms of any Tenant Leases, shall be prorated as of the
Closing Date between Xxxxx and the LLC. Any refund or the savings for any period
after the tax year in which the Closing occurs shall belong solely to the LLC.
From and after the Closing, the Owner LLCs shall have the right to receive any
refund payable to any Tenant and to distribute such refunds to such Tenants in
accordance with the terms of their respective Tenant Leases. In the event Xxxxx
Parties shall receive any refund from any governmental or taxing authority which
refund is payable to a Tenant under its Tenant Lease or to Fourmall or any Owner
LLC in accordance with the terms hereof, such funds shall be deemed to be trust
funds and Xxxxx Parties agree to hold same in trust and to promptly deliver such
funds to the LLC. Fourmall and Xxxxx Parties shall each execute all consents,
receipts, assignments, instruments and documents which may reasonably be
requested in order to facilitate settling such proceedings and collecting the
amount of any refund or tax savings. The provisions of this Section 10 shall
survive the Closing.
11. Recording Charges and Transfer Taxes. Xxxxx shall pay thirty-five
------------------------------------
percent (35%) and Fourmall shall pay sixty-five percent (65%) of all state and
local deed taxes, real property transfer taxes, if any (other than any of Xxxxx
Parties' franchise or income taxes which shall be paid by Xxxxx), title
insurance premiums for title insurance (including, without limitation, the cost
of reinsurance and endorsements) in the amounts set forth on Exhibit G, survey
costs, and all recording charges and fees (the "Charges"). Xxxxx and Fourmall
shall each pay the costs and expenses of its legal counsel, accountants, experts
and Representatives incurred in connection
-14-
with the transaction contemplated by this Agreement. Fourmall shall pay the
costs and expenses of its due diligence investigations. Xxxxx shall pay all the
costs and expenses in connection with the Mortgages (including, without
limitation, any transfer fees, processing fees, any Existing Lender's costs or
any other expense payable to any Existing Lender as a result of the transactions
contemplated hereunder, including, but not limited to, any reorganization of the
interests of Xxxxx and its Affiliates in connection therewith), except that if
Closing is consummated with respect to Bridgewater Commons, the Four Hundred
Fifty Thousand Dollar ($450,000) commitment fee paid in connection with that
certain permanent financing in the amount of One Hundred Fifty Million Dollars
($150,000,000) covering Bridgewater Commons, shall be shared by Xxxxx and
Fourmall on a pro rata basis in accordance with the percentage interest of
each party in the LLC as of the Closing Date. The provisions of this
Section 11 shall survive the Closing, or if the Closing does not occur, the
termination of this Agreement.
12. Representations and Warranties.
------------------------------
(a) Xxxxx represents and warrants to Fourmall that:
(i) Xxxxx is a corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada. Xxxxx has the full power
and authority to own, lease and operate its assets and properties and to conduct
its business as now being conducted.
(ii) The LLC is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware. The LLC
has the full power and authority to own, lease and operate its assets and
properties and to conduct its business as now being conducted.
(iii) Each of the Owner LLCs is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Maryland, and is qualified to do business in the State in which that portion of
the Property it owns is located. Each of the Owner LLCs has the full power and
authority to own, lease and operate its assets and properties and to conduct its
business as now being conducted.
(iv) Except as set forth on Exhibit E annexed hereto and made a part
---------
hereof and except for (a) obligations under the Tenant Leases, Operating
Agreements, Ground Leases, XXXXXx, the Permitted Encumbrances or the Loan
Documents other than obligations required to be performed prior to Closing,
(b) obligations under the Laws other than obligations required to be performed
prior to Closing, (c) accounts payable in the ordinary course of business for
which adjustments are made pursuant to Section 21 hereof, (d) the Qualified
Liabilities (which Xxxxx hereby covenants shall be satisfied from the Fourmall
Initial Capital Contribution, or (e) any other matter specifically disclosed in
this Agreement, there are no Liabilities of the LLC, the Owner LLCs, the Holding
LLCs or the Property (including, but not limited to, Liabilities for Taxes
relating to any period prior to the date hereof).
(v) Each of the Holding LLCs is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Maryland, and each is qualified to do business in any state in which it is
required to be qualified by virtue of its
-15-
business operations. Each of the Holding LLCs has the full power and authority
to own, lease and operate its assets and properties and to conduct its business
as now being conducted.
(vi) Xxxxx and HRD are all of the members of the LLC. Upon the
admission of Fourmall to the LLC as an additional member of the LLC on the terms
contemplated under this Agreement and the Amended and Restated LLC Agreement,
attached hereto as Exhibit Z, HRD shall withdraw from the LLC as a member
---------
thereof such that Xxxxx and Fourmall will be all of the members of the
LLC and will hold all of the membership interests in the LLC. Xxxxx and HRD own
all of such membership interests in the LLC (including, without limitation,
subscriptions and other rights to purchase or acquire any membership interest of
the LLC) free and clear of any Liens. Xxxxx has the full and unrestricted right,
power and authority to cause the LLC to issue the Fourmall LLC Interests to
Fourmall free and clear of any Liens and to admit Fourmall as a member of the
LLC with respect to the Fourmall LLC Interests pursuant to all of the terms and
conditions of the LLC Agreement. Neither Xxxxx nor HRD has sold, conveyed,
transferred, given, pledged, mortgaged or otherwise disposed of, encumbered or
granted in any manner any interest in the LLC, there are no outstanding
warrants, options, rights, agreement, calls or other commitments relating to or
providing for the sale, conveyance, transfer, gift, pledge, mortgage or other
disposition, encumbrance or granting of, or permitting any Person to acquire any
interest in, an interest in the LLC.
(vii) The LLC is the sole member of the Holding LLCs (except for TTC
SPE) and Fashion LLC. The LLC owns all of the membership interests of the
Holding LLCs (except for TTC SPE) and Fashion LLC (including, without
limitation, subscriptions and other rights to purchase or acquire any membership
interest of any Holding LLC and Fashion LLC) free and clear of any Liens, and
has the absolute right, power and capacity, subject to the Lenders' Consents, to
sell, assign, convey, transfer and deliver the same, free and clear of any
Liens. The LLC has not sold, conveyed, transferred, given, pledged, mortgaged or
otherwise disposed of, encumbered or granted in any manner any interest in the
Holding LLCs or Fashion LLC, and there are no outstanding warrants, options,
rights, agreement, calls or other commitments relating to or providing for the
sale, conveyance, transfer, gift, pledge, mortgage or other disposition,
encumbrance or granting of, or permitting any Person to acquire any interest in,
an interest in any of the Holding LLCs or Fashion LLC.
(viii) Park Xxxxxxx Holding is the sole member of Park Xxxxxxx LLC.
Except for the Hypo Bank Lien, Park Xxxxxxx Holding owns all of the membership
interests of Park Xxxxxxx LLC (including, without limitation, subscriptions and
other rights to purchase or acquire any membership interest of Park Xxxxxxx LLC)
free and clear of any Liens, and has the absolute right, power and capacity,
subject to the Lenders' Consents, to sell, assign, convey, transfer and deliver
the same, free and clear of any Liens. Except for the Hypo Bank Lien, Park
Xxxxxxx Holding has not sold, conveyed, transferred, given, pledged, mortgaged
or otherwise disposed of, encumbered or granted in any manner any interest in
Park Xxxxxxx LLC and, except for the Hypo Bank Lien, there are no outstanding
warrants, options, rights, agreement, calls or other commitments relating to or
providing for the sale, conveyance, transfer, gift, pledge, mortgage or other
disposition, encumbrance or granting of, or permitting any Person to acquire any
interest in, an interest in Park Xxxxxxx LLC.
-16-
(ix) Bridgewater Holding is the sole member of Bridgewater LLC.
Bridgewater Holding (1) owns all of the membership interests of Bridgewater LLC
(including, without limitation, subscriptions and other rights to purchase or
acquire any membership interest of Bridgewater LLC) free and clear of any Liens,
and (2) has the absolute right, power and capacity, subject to the Lenders'
Consents, to sell, assign, convey, transfer and deliver the same, free and clear
of any Liens. Bridgewater Holding has not sold, conveyed, transferred, given,
pledged, mortgaged or otherwise disposed of, encumbered or granted in any manner
any interest in Bridgewater LLC and there are no outstanding warrants, options,
rights, agreement, calls or other commitments relating to or providing for the
sale, conveyance, transfer, gift, pledge, mortgage or other disposition,
encumbrance or granting of, or permitting any Person to acquire any interest in,
an interest in Bridgewater LLC.
(x) Towson Holding owns ninety-nine and one-half percent (99-1/2%) of
the membership interests of Towson LLC (including, without limitation,
subscriptions and other rights to purchase or acquire any membership interest of
Towson LLC) free and clear of any Liens, and has the absolute right, power and
capacity, subject to the Lenders' Consents, to sell, assign, convey, transfer
and deliver the same, free and clear of any Liens. Towson Holding has not sold,
conveyed, transferred, given, pledged, mortgaged or otherwise disposed of,
encumbered or granted in any manner any interest in Towson LLC and there are no
outstanding warrants, options, rights, agreement, calls or other commitments
relating to or providing for the sale, conveyance, transfer, gift, pledge,
mortgage or other disposition, encumbrance or granting of, or permitting any
Person to acquire any interest in, an interest in Towson LLC.
(xi) TTC SPE is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Maryland. TTC SPE
has the full power and authority to own lease and operate its assets and
properties and to conduct its business as now being conducted. The LLC owns
ninety-nine percent (99%) of the membership interests in TTC SPE (including,
without limitation, subscriptions and other rights to purchase or acquire any
membership interest of TTC SPE) free and clear of any Liens, and has the
absolute right, power and capacity, subject to the Lenders' Consents, to sell,
assign, convey, transfer and deliver the same, free and clear of any Liens. The
LLC has not sold, conveyed, transferred, given, pledged, mortgaged or otherwise
disposed of, encumbered or granted in any manner any interest in TTC SPE and
there are no outstanding warrants, options, rights, agreement, calls or other
commitments relating to or providing for the sale, conveyance, transfer, gift,
pledge, mortgage or other disposition, encumbrance or granting of, or permitting
any Person to acquire any interest in, an interest in TTC SPE. TTC Member holds
one percent (1%) of the membership interests in TTC SPE, which, together with
the membership interests in TTC SPE owned by the LLC, represent all of the
membership interests in TTC SPE.
(xii) Annexed hereto as Exhibit H and made a part hereof is a
---------
complete list of the LLC Documents as the same may have been modified and/or
amended. The LLC Documents are in full force and effect and have not been
modified, supplemented or amended and there shall be no amendments thereto prior
to the Closing Date. True and correct copies of the LLC Documents have been
delivered by Xxxxx to Fourmall on or prior to the date hereof.
-17-
(xiii) With respect to each Holding LLC and each Owner LLC, annexed
hereto as Exhibit H-1 and made a part hereof is a complete list of all of the
-----------
documents governing the organization and structure of each respective limited
liability company, as the same may have been modified and/or amended, including,
but not limited to (1) the articles of organization or certificates of limited
liability company, (2) the limited liability company agreements or operating
agreements (as the same may have been amended or modified) and (3) all documents
evidencing the authority of such Holding LLC and Owner LLC to conduct business
in any state other than the state of its organization. Each of the foregoing
documents are in full force and effect and have not been modified, supplemented
or amended and there shall be no amendments thereto prior to the Closing Date.
True and correct copies of all of the foregoing documents have been delivered by
Xxxxx to Fourmall on or prior to the date hereof.
(xiv) Neither Xxxxx Parties nor the LLC have taken any action
inconsistent with the treatment of any Holding LLC or any Owner LLC as a
"disregarded entity," or the LLC as a partnership, for federal income tax
purposes. Xxxxx Parties and the LLC have each paid all Taxes due and owing with
respect to the LLC, the Owner LLCs and the Holding LLCs and have not received
from any authority any written notice (i) of underpayment of any such Taxes,
(ii) that any Actions relating to the tax liability or tax status of any of the
foregoing entities are pending, (iii) that the institution of any such Action is
contemplated by any authority and (iv) that Xxxxx Parties and the LLC have
waived restrictions on assessment or collection of Taxes or consented to the
extension of any statute of limitations with respect to the taxation of the LLC,
the Owner LLCs and the Holding LLCs.
(xv) This Agreement constitutes the legal, valid and binding
obligation of Xxxxx, enforceable against Xxxxx in accordance with its terms.
Xxxxx has taken all necessary action to authorize and approve the execution and
delivery of this Agreement and the consummation of the transactions contemplated
by this Agreement.
(xvi) This Agreement constitutes the legal, valid and binding
obligation of each of the Owner LLCs, enforceable against each of the Owner LLCs
in accordance with its terms. Each of the Owner LLCs have taken all necessary
action to authorize and approve the execution and delivery of this Agreement and
the consummation of the transactions contemplated by this Agreement.
(xvii) This Agreement constitutes the legal, valid and binding
obligation of each of the Holding LLCs, enforceable against each Holding LLC in
accordance with its terms. Each of the Holding LLCs has taken all necessary
action to authorize and approve the execution and delivery of this Agreement and
the consummation of the transactions contemplated by this Agreement.
(xviii) The execution and delivery of this Agreement and the
performance by Xxxxx of its obligations hereunder do not and will not conflict
with or violate any law, rule, judgment, regulation, order, writ, injunction or
decree of any court or governmental or quasi-governmental entity with
jurisdiction over Xxxxx or the Property, including, without limitation, the
United States of America, the States of Maryland or Nevada, any state in which
any portion
-18-
of the Property is located or any political subdivision of any of the foregoing,
or any decision or ruling of any arbitrator to which Xxxxx is a party or by
which Xxxxx or the Property is bound or affected.
(xix) The execution and delivery of this Agreement and the performance
by each of the Owner LLCs of their respective obligations hereunder do not and
will not conflict with or violate any law, rule, judgment, regulation, order,
writ, injunction or decree of any court or governmental or quasi-governmental
entity with jurisdiction over any Owner LLC or the Property, including, without
limitation, the United States of America, the State of Maryland, the state in
which any portion of the Property is located or any political subdivision of any
of the foregoing, or any decision or ruling of any arbitrator to which any Owner
LLC is a party or by which any Owner LLC or any portion of the Property is bound
or affected.
(xx) The execution and delivery of this Agreement and the performance
by each of the Holding LLCs of their respective obligations hereunder do not and
will not conflict with or violate any law, rule, judgment, regulation, order,
writ, injunction or decree of any court or governmental or quasi-governmental
entity with jurisdiction over any Holding LLC or the Property, including,
without limitation, the United States of America, the State of Maryland, the
state in which any portion of the Property is located or any political
subdivision of any of the foregoing, or any decision or ruling of any arbitrator
to which any Holding LLC is a party or by which any Holding LLC or any portion
of the Property is bound or affected.
(xxi) Neither the Property, nor Xxxxx Parties, nor the LLC is a party
to, or is subject to or bound by, any agreement (other than the Loan Documents),
judgment, order, writ, injunction or decree of any court or governmental body
that could prevent the performance of all or any of the terms of this Agreement,
or with respect to which the performance by Xxxxx Parties of their respective
obligations under this Agreement would create a Default under any of the
Documents.
(xxii) Xxxxx Parties have no knowledge of any Federal, State, County,
municipal or other governmental plans to change the highway or road system in
the vicinity of the Property or to restrict or change access from any such
highway or road to the Property or of any pending or threatened condemnation or
eminent domain proceedings relating to or affecting the Property.
(xxiii) Except for the rights of Hypo Bank set forth in the Loan
Documents relating to the Hypo Bank Lien, no Person has any conditional or
unconditional right and/or option to purchase the Property or any membership
interests in Xxxxx Parties or the LLC and/or net lease the Property (or any
portion thereof), and/or right of first refusal or offer to purchase the
Property (or any portion thereof) or any membership interests in Xxxxx Parties
or the LLC.
(xxiv) Neither Xxxxx Parties, nor the LLC, nor any of their respective
members has (i) made a general assignment for the benefit of its creditors,
(ii) admitted in writing its inability to pay its debts as they mature,
(iii) had an attachment, execution or other judicial seizure of any property
interest which remains in effect, (iv) taken, failed to take or
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submitted to any action indicating a general inability to meet its financial
obligations as they accrue, or (v) received actual notice or has knowledge of
the pending or threatened bankruptcy of any of the Tenants (except as set
forth on Exhibit M attached hereto and made a part hereof) or any party to a
---------
XXXXX. There is not pending any case, proceeding or other action seeking
reorganization, arrangement, adjustment, liquidation, dissolution or
recomposition of Xxxxx Parties or the LLC or any of their respective members or
any of its or their debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking appointment of a receiver, trustee,
custodian or other similar official for it or any of its members for all or any
substantial part of its or their property.
(xxv) No leasing commission is now or will hereafter become due or
owing in connection with any of the Tenant Leases, including, without
limitation, in connection with any renewals or extensions of the term thereof,
except as disclosed on Exhibit I attached hereto.
---------
(xxvi) To the actual knowledge of Xxxxx Parties, the Premises and the
current use, occupation and condition thereof are in compliance with and do not
violate any applicable deed restrictions or other covenants, restrictions or
agreements (including, without limitation, any of the Permitted Encumbrances),
site plan approvals, zoning or subdivision regulations or urban redevelopment
plans applicable to the Premises and Xxxxx Parties have not received any notice
of such noncompliance or violation. Xxxxx Parties are not in Default under any
Permitted Encumbrance and, to their actual knowledge, have satisfied and are
otherwise in full compliance with the covenants, conditions, obligations,
restrictions and requirements set forth in the Permitted Encumbrances and Xxxxx
Parties have not received any notice of such Default or noncompliance. All work,
development, construction and improvements performed or required pursuant
thereto, whether by Xxxxx Parties or, to the best of Xxxxx Parties' knowledge,
any predecessor in interest of any of the foregoing, have been completed and
paid for in conformity therewith. All current assessments, dues, charges and
other payments required under any of the Permitted Encumbrances have been paid
in full and Xxxxx Parties are not in arrears with respect to any such payments.
(xxvii) Except (1) as set forth on the current tax bills, copies of
which are annexed hereto and made a part hereof as Exhibit J, which copies are
---------
true and complete copies of such tax bills, (2) PIFs (as hereinafter defined) at
Park Xxxxxxx and (3) payments required under the Bridgewater Revised Contract,
there are no special assessments or charges which have been levied against the
Property or which will result from work, activities or improvements done to the
Property, nor do Xxxxx Parties know of any pending or threatened special
assessments affecting the Property or any contemplated improvements affecting
the Property that may result in any such special assessments.
(xxviii) Except for the Property Management Agreements, there is no
contract or agreement with any third party for the management of the Property or
any portion thereof which will be binding on any of the Owner LLCs as of the
Closing Date.
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(xxix) (1) Except as set forth in the environmental reports and other
written materials listed in Exhibit K annexed hereto and made a part hereof
---------
(the "Reports"), to the actual knowledge of Xxxxx Parties, Xxxxx Parties and the
Property have, and through the Closing Date will have, complied in all material
respects with all Environmental Laws (as hereinafter defined). To the actual
knowledge of Xxxxx Parties, Xxxxx Parties have obtained and will maintain
through the Closing Date all Licenses and Permits which are required with
respect to the operation of the Property under any Environmental Laws.
(2) Except as set forth in the Reports, to the actual knowledge
of the Xxxxx Parties, the Property and Xxxxx Parties are in compliance in all
material respects with all Licenses and Permits required by any Environmental
Laws, and are also in compliance in all material respects with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any Environmental Laws or
contained in any regulation, code, plan, order, decree, judgment, injunction,
notice or demand letter issued, entered, promulgated or approved thereunder.
Xxxxx Parties have delivered or, in the case of any environmental studies so
identified in Exhibit K, made readily available to Fourmall, true and
------- -
complete copies of all-environmental studies relating to the Property in Xxxxx
Parties' possession.
(3) Except as set forth in the Reports, there is no pending,
nor, to the actual knowledge of the Xxxxx Parties, threatened Action, demand,
claim, hearing, notice of violation, notice or demand letter that affects or
applies to any Owner LLC, Holding LLC or the Property relating in any way to any
Environmental Laws or any regulation, code, plan, order, decree, judgment,
injunction, notice or demand letter issued, entered, promulgated or approved
thereunder.
(4) Except as set forth in Exhibit K, to the actual knowledge
---------
of the Xxxxx Parties, there are no past or present events, conditions,
circumstances, activities, practices, incidents actions or plans which may
reasonably be expected to interfere with or prevent compliance or continued
compliance by any of the Owner LLCs with any Environmental Laws or with any
regulation, code, plan, order, decree, judgment, injunction, notice or demand
letter issued, entered, promulgated or approved thereunder, or which may give
rise to any common law or legal liability, or otherwise form the basis of any
claim, action, demand, suit, proceeding, hearing, notice of violation, study or
investigation, based on or related to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling, or the emission,
discharge, release or threatened release into the environment, by any Owner LLC
of any pollutant, contaminant, chemical, or industrial, toxic or Hazardous
Substance or Waste (as hereinafter defined).
(5) Except as set forth in the Reports, to the actual knowledge
of the Xxxxx Parties, there has been no emission, spill, release or discharge
from the Property or by any Owner LLC at any other location or disposal site,
into or upon (i) the air, (ii) soils or improvements, (iii) surface water or
ground water, or (iv) the sewer, septic system or waste treatment, storage or
disposal system servicing the Property of any toxic or hazardous substances or
wastes used, stored, generated, treated or disposed at or from any of the Assets
(any of which
-21-
events is hereinafter referred to as "Hazardous Discharge"), and the Property is
free of all toxic or hazardous substances or wastes except for paints, cleaning
materials, fertilizer, pesticides, fuels and lubricants or similar materials in
amounts customarily used by prudent owners and tenants in the maintenance of
their properties, all of which are being used, stored, handled, transported,
generated and disposed of in compliance with applicable Environmental Laws.
(6) To the actual knowledge of the Xxxxx Parties, except as set
forth in Exhibit K, there have not been any complaints, order, directive, claim,
---------
citation or notice with respect to (i) air emissions, (ii) spills, releases or
discharges to soils or any improvements located thereon, surface water, ground
water or the sewer, septic system or waste treatment, storage or disposal
systems servicing the Property, (iii) noise emissions, (iv) solid or liquid
waste disposal, (v) the use, generation, storage, transportation or disposal of
toxic or hazardous substances or wastes or (vi) other environmental, health or
safety matters affecting Xxxxx Parties or the Property, including, without
limitation, Environmental Laws.
(7) Neither the Property nor any portion thereof is now or, to
the actual knowledge of the Xxxxx Parties, has ever been a Super-Fund Site.
Except as set forth in the Reports, to the actual knowledge of the Xxxxx
Parties, there are no underground storage tanks located on the Property.
(8) If Xxxxx Parties receive any notice from any governmental
quasi-governmental authority, or any other person or entity with regard to any
Hazardous Substances or Hazardous Discharges on, from, or affecting the
Property, Xxxxx Parties shall immediately notify Fourmall in writing.
(xxx) Exhibit L annexed hereto and made a part hereof sets forth
---------
each of the Operating Agreements to which the Owner LLCs or the Property are a
party, subject or bound. Each of the Operating Agreements is a valid and
subsisting Operating Agreement of all of the parties thereto in full force and
effect without modification. Each Owner LLC has performed all obligations
required to be performed by it and is not in default under any Operating
Agreement to which it is a party, by assumption or otherwise. To the best
knowledge of the Xxxxx Parties, no other party is in default under any such
Operating Agreement. Xxxxx Parties have delivered to Fourmall true, correct and
complete copies of the Operating Agreements. Neither the LLC nor any of the
Holding LLCs is a party to any lease, contract, agreement or other obligation
other than the Operating Agreements and the Tenant Leases. None of the Operating
Agreements are between an Owner LLC and any Affiliate of Xxxxx.
(xxxi) All of the Tenant Leases to which any Owner LLC is a party (by
assignment or otherwise) in existence on the date hereof have been delivered to
Fourmall. The copies of the Tenant Leases that have been delivered by Xxxxx
Parties to Fourmall are true, correct and complete. Exhibit M sets forth all
---------
Tenant Leases to which any Owner LLC is a party and, to the best of the Xxxxx
Parties' knowledge and belief, all subleases, occupancies and tenancies and all
amendments and supplements thereto in existence on the date hereof; to the
knowledge of Xxxxx Parties, the Tenant Leases are in full force and effect; to
the knowledge of Xxxxx Parties, there are no parties in possession of the
Property, except the Tenants and
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any subtenants disclosed in Exhibit M or Exhibit N; except as set forth
--------- ---------
in Exhibit M, all tenant improvements required under the Tenant Leases
---------
to be completed by the date hereof by the landlord thereunder have been
completed and all tenant allowances required under the Tenant Leases to be paid
in full as of the date hereof have been paid in full; except as set forth in
Exhibit M, there are no unsatisfied "Take-Over" space obligations or "Take-Back"
---------
space obligations ("Take-Over" space obligations means rent obligations of the
Tenant in other buildings assumed by the landlord and "Take-Back" space
obligations means obligations imposed upon the landlord to sublet or otherwise
be responsible for the obligations of a Tenant under a Tenant Lease); except as
set forth in Exhibit M or Exhibit N, to the knowledge of Xxxxx Parties, there
--------- ---------
are no disputes with Tenants as to the amount of their rent or other charges
(including, without limitation, charges for common area maintenance) under any
Tenant Lease; except as set forth in the Tenant Leases, no Tenant has any option
to cancel its Tenant Lease; except as set forth on Exhibit M, there is no
---------
Default by the landlord under any Tenant Leases and Xxxxx Parties have
not received from any Tenant any written notice claiming any default by the
landlord under its Tenant Lease; except as set forth in Exhibit M, Xxxxx
---------
Parties have not delivered to any Tenant any written notice claiming a default
by Tenant under its Tenant Lease; to the best knowledge of Xxxxx Parties there
are no circumstances which, after notice and the expiration of any applicable
grace period, would constitute a default by either landlord or any Tenant under
any of the Tenant Leases; except as set forth on Exhibit M or Exhibit N,
--------- ---------
no Tenant has asserted, or has any defense to, offsets or claims against
rental payable or obligations under any Tenant Lease; no guarantor of any Tenant
Lease has been released or discharged, voluntarily (or to the best of Xxxxx
Parties' knowledge, involuntarily, or by operation of law) from any obligation
related to such Tenant Lease.
(xxxii) Attached hereto as Exhibit N is a rent roll and security
---------
deposit schedule (the "Rent Roll") for all Tenant Leases in effect as of the
date hereof. The Rent Roll shall contain the following information with respect
to each Tenant Lease: (1) name of Tenant, (2) rentable space (as specified in
the related Tenant Lease), (3) base annual rent payable, (4) annual percentage
rent payable and percentage rent break point, (5) amounts of common area
maintenance charge and real property taxes payable (and if not based on a pro
rata share, the method by which such amounts are billed) (6) frequency rent is
payable if other than monthly, (7) amount of security deposit, if any,
(9) intentionally omitted, (10) commencement date, (11) expiration date,
(12) renewal options, (13) rent per square foot, and (14) any other material
information available to Xxxxx Parties with respect to any Tenant Lease in
addition to the foregoing items, including, but not limited to, such additional
information previously provided by Xxxxx to Fourmall with respect to any Tenant
Lease. All security deposits are held by or on behalf of the Owner LLCs. For
purposes of this Agreement, "Percentage Interest" means the percentage interest
or pro-rata share for each Tenant under its Tenant Lease with respect to that
portion of the Premises for which such Tenant is responsible for common area
maintenance charges or any other charge payable to the landlord under such
Tenant Lease. The Percentage Interest for each Tenant has been and is currently
calculated accurately and correctly in accordance with the method of calculation
prescribed in such Tenant's Tenant Lease.
(xxxiii) Except as set forth on Exhibit O attached hereto (the
---------
"Litigation List"), there are no pending or, to Xxxxx Parties' actual knowledge,
contemplated Actions,
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affecting all or any portion of the Property or Xxxxx Parties which are not
otherwise covered by insurance and described in Exhibit P attached
hereto. The Litigation List contains an accurate summary of the status of all
matters shown thereon.
(xxxiv) (1) Xxxxx Parties have not received any written notice of any
violation of any law (including, without limitation, building code, health and
safety or zoning violations), ordinance, judgment, statute, rule, order, decree,
writ, injunction or regulation issued by any court or governmental or quasi-
governmental authority affecting the Property (collectively, "Violations") and
(2) Xxxxx Parties have not received any written notice that an investigation has
been commenced respecting any such possible Violations.
(xxxv) To Xxxxx Parties' actual knowledge, Exhibit Q attached
---------
hereto sets forth the Licenses and Permits held by the Owner LLCs with respect
to the Property and necessary to be maintained in connection with the ownership,
use, operation, leasing and maintenance of the Premises. To the actual knowledge
of Xxxxx Parties, (a) the Licenses and Permits set forth on Exhibit Q represent
---------
all of the licenses and permits necessary to be maintained in connection
with the ownership, use, operation, leasing and maintenance of the Premises,
(b) all such Licenses and Permits are in full force and effect and (c) the
current use and occupation of any portion of the Premises does not violate any
of the Licenses and Permits. Xxxxx Parties have received no written notice of
(1) any pending or threatened modification or cancellation of any of the
Licenses and Permits, (2) that they lack any License or Permit, or (3) the
violation of any of the Licenses or Permits.
(xxxvi) Exhibit P attached hereto sets forth a true and complete
---------
list and description (including face amount of policy, name of insured, carrier,
premium, amount of deductible, expiration date and whether it is a "claims made"
or an "occurrence" policy) of all insurance policies relating to the Property.
All such policies are in amounts customarily deemed to be adequate, and cover
all risks customarily insured against, in the type of business conducted by
Xxxxx and all premiums due on such policies have been paid in full. All pending
claims (1) made from and after August 1, 1998, if any, against the Property or
Xxxxx Parties which are covered by insurance or (2) made prior to August 1,
1998, if any, against the Property or any predecessor-in-interest to any Xxxxx
Party, to the actual knowledge of Xxxxx Parties, are being defended by the
appropriate insurance companies and are described on Exhibit P. Such insurance
---------
to the date hereof has, and to the Closing Date will have, (a) been maintained
in full force and effect and (b) not been canceled or changed except to extend
the maturity dates thereof. None of the Owner LLCs has received any written
notice from any insurance company which has issued a policy with respect to the
Premises or from the holder of any mortgage encumbering the Premises requesting
or requiring performance of any structural or other major repairs or alterations
to the Premises which has not been complied with.
(xxxvii) (1) The list of Personalty set forth in Exhibit R annexed
---------
hereto and made a part hereof is true, accurate and complete list of all
Personalty having a fair market value (per item) of $10,000 or more. The
Personalty has been fully paid for and is not subject to any lien, security
interest, mortgage, claim, charge, pledge, restriction, equitable interest,
restrictive covenant or encumbrance of any nature ("Liens"), except the Liens
securing
-24-
the Mortgages or any Liens set forth on Exhibit S. The Owner LLCs have
---------
good and marketable fee or leasehold title to such Personalty free and clear of
any Liens, except as set forth on Exhibit S and in those instances where the
---------
Owner LLC has leasehold title (rather than fee title) to any Personalty listed
in Exhibit R, the leases related thereto (including all amendments thereof) are
---------
described on Exhibit R. The Personalty listed in Exhibit R is located on the
--------- ---------
Premises and is the Personalty used in the ownership, use, operation, leasing
and maintenance of the Property (other than personal property owned by Tenants).
(2) To the actual knowledge of Xxxxx Parties, all fixtures,
machinery, equipment, lighting fixtures and appliances comprising a portion of
the Personalty and all heating, air-conditioning, ventilating, electrical and
plumbing systems on the Premises are free of material defects and in good
working order and comply with the requirements of all applicable Governmental
Authorities having jurisdiction thereover, and all Laws, including, without
limitation, all Environmental Laws and all Licenses and Permits required thereby
have been obtained and are in full force and effect.
(xxxviii) There are no union or employment contracts or agreements
(written or oral) affecting the Premises and there are no employees of Xxxxx
Parties or the LLC, at the Premises or otherwise, who, by reason of any Federal,
State, County, municipal or other law, ordinance, order, requirement or
regulation, or by reason of any union or other employment contract, written or
otherwise, or any other reason whatsoever, would become employees of Fourmall as
a result of the transactions contemplated in this Agreement. By the execution of
this Agreement, Fourmall is neither expressly nor implicitly assuming any
liability, obligation, cost or expense whatsoever with respect to any employment
contract, employee benefit plan or arrangement, employment policy or practice,
collective bargaining agreement, union contract, employment related claims
whether based on statute, common law, tort or otherwise or any other liability
relating in any way to employees (collectively, "Employment Liabilities").
(xxxix) Annexed hereto as Exhibit T and made a part hereof are the
---------
financial statements relating to the Property for the two years ended
December 31, 1997, consisting of balance sheets and income statements
(collectively, the "Financial Statements"), together with any operating
statements and budgets covering periods subsequent to December 31, 1997
(collectively, the "Interim Financial Statements"). The Financial Statements in
each case are true and complete with respect to each item therein and fairly
present the financial position and results of operations of the Property as at,
or for the periods ended on, such dates.
(xl) (1) The Loan Documents constitute all of the material
documents instruments executed and delivered by any Person in connection with
the Mortgages or the loans secured by the Mortgages currently affecting the
Property, or any part thereof; each of the Loan Documents is in full force and
effect and has not been modified or amended, except as indicated on Exhibit C;
---------
the Owner LLCs have paid all amounts due under the Loan Documents to the date
hereof, and there exists no uncured default under the Loan Documents or event or
state of facts which, with the giving of notice or passage of time, or both,
would constitute a default thereunder, nor has any borrower under any Loan
Document received any notice or other
-25-
communication claiming that such a default or state of facts exists thereunder.
Xxxxx Parties have delivered to Fourmall true, correct and complete copies of
all the Loan Documents.
(2) IDOT Borrower is borrower of that certain loan in the original
principal amount of One Hundred Forty Million and 00/100 ($140,000,000) Dollars
made by The Chase Manhattan Bank, secured, by a guaranty from Towson LLC, which
guaranty is secured by that certain Indemnity Deed of Trust and Security
Agreement, dated October 22, 1998 (the "IDOT"). IDOT Borrower is a wholly-owned
subsidiary of Towson LLC. IDOT Borrower has paid all amounts due under the IDOT
to the date hereof, including, without limitation, all costs payable by IDOT
Borrower in connection with the securitization of the loan secured, in part, by
the IDOT (which securitization has been completed). There exists no uncured
Default under the IDOT or event or state of facts which, with the giving of
notice or passage of time, or both, would constitute a Default thereunder, nor
has IDOT Borrower received any notice or other communication claiming that such
a Default or state of facts exists under the IDOT. IDOT Borrower, Towson LLC and
TTC Member, and TTC SPE (collectively, the "IDOT Parties") are all currently in
compliance with all organizational requirements specified for the IDOT Parties
in the IDOT, including, without limitation, satisfaction and maintenance of all
single purpose entity requirements for the IDOT Parties and the maintenance of
an independent director of TTC Member, Inc. The IDOT Borrower has not incurred
any Liabilities and is not a party to any agreement, lease or other document
creating any obligations other than the Loan Documents that have been executed
by the IDOT Borrower.
(3) Park Xxxxxxx Holding has pledged all of its right, title and
interest in and to Park Xxxxxxx LLC to Hypo Bank, pursuant to that certain
Assignment in Respect of Limited Liability Company, dated as of July 31, 1998
(the "Park LLC Assignment"). No Default exists under the Park LLC Assignment and
no event or state of facts exists which, with the giving of notice or passage of
time, or both, would give rise to a Default thereunder, nor has Park Xxxxxxx
Holding received any notice or other communication asserting that such a Default
or state of facts exists under the Park LLC Assignment.
(4) Neither Fashion LLC nor Xxxxx nor any other Owner LLC or Holding
LLC thereof has any Liabilities under that certain loan in the original
principal amount of $56,000,000 (the "Fashion Loan") from Teachers Insurance and
Annuity Association of America to Fashion Place Associates in connection with
the obligation of Fashion Place Associates, or any Affiliate thereof, to expend
at least $2,000,000 on tenant improvements and capital improvements at Fashion
Place Mall within twenty five (25) months after December 14, 1995 (such
obligations hereinafter referred to as the "Fashion Expenditure Obligations").
(5) Neither the LLC, nor the Holding LLCs, nor the Owner LLCs own
any subsidiaries or interests in other entities except for Towson LLC's
ownership of all of the membership interests in the IDOT Borrower and except as
described in the Recitals to this Agreement.
-26-
(6) Hypo Bank is the sole holder of that certain Variable Rate
Improvement Revenue Bond Taxable Series 1995, dated August 25, 1995, as amended
and restated by that certain Amended and Restated Variable Rate Improvement
Revenue Bond Taxable Series 1995, dated September 29, 1997, affecting Park
Xxxxxxx (collectively, the "PIF Bond"). Norwest Bank Colorado, N.A. ("Trustee")
is trustee under that certain Trust Indenture, dated as of August 25, 1995, as
amended and restated as of September 29, 1997 (the "Indenture"), executed and
delivered by Park Xxxxxxx Mall, Ltd., a Colorado limited partnership, in
connection with the PIF Bond. The PIF Bond, the Indenture and all other
documents executed and delivered by Park Xxxxxxx Mall, Ltd. in connection
therewith are hereinafter collectively referred to as the "PIF Documents."
Except for the Liabilities under the Park LLC Assignment, Park Xxxxxxx LLC has
assumed all of the Liabilities of Park Xxxxxxx Mall, Ltd. and any Affiliate
thereof under the PIF Documents. Xxxxx has delivered to Fourmall on or prior to
the date hereof true and correct copies of all of the PIF Documents; the PIF
Documents are in full force and effect and have not been modified or amended,
except as previously disclosed by Xxxxx to Fourmall in writing; Park Xxxxxxx LLC
has paid or caused to be paid all amounts due from Park Xxxxxxx LLC under the
PIF Documents to the date hereof, and there exists no uncured default by Park
Xxxxxxx LLC under the PIF Documents or event or state of facts which, with the
giving of notice or passage of time, or both, would constitute a default
thereunder. Park Xxxxxxx LLC has not received any notice or other communication
claiming that such a default or state of facts exists thereunder. Copies of each
Tenant Lease and the Park XXXXX have been provided to the Trustee. There have
been no amendments or modifications of the limited liability company
operating agreement or certificate of formation of Park Xxxxxxx LLC made without
the written consent of Hypo Bank. To the best knowledge of Xxxxx, except as set
forth in Exhibit V, attached hereto and made a part hereof, all parties required
---------
to assess, collect and remit Public Improvement Fee payments ("PIFs") pursuant
to the Park XXXXX or any Tenant Lease are current in such obligations. Xxxxx
Parties have not received any notice from Trustee or Hypo Bank of any party's
failure to remit the PIFs required under the Park XXXXX or a Tenant Lease, as
the case may be. The sum of the PIF plus applicable state, county and local
sales tax at Park Xxxxxxx is less than applicable state, county and local sales
tax at that certain shopping mall in the Denver, Colorado area commonly known as
Cherry Creek Mall.
(xli) Neither Xxxxx Parties nor the LLC has received notice of any
judgment, decree, injunction, order, decision, directive, regulation or ruling
of any governmental or quasi-governmental authority ("Court Orders") issued
against, or binding on, Xxxxx Parties, the LLC or the Property which do or may
affect, limit or control the Property or Xxxxx Parties' or the LLC's method or
manner of doing business. Neither Xxxxx Parties nor the LLC is in default with
respect to any Court Order. Neither Xxxxx Parties, the LLC nor the Property is a
party to, or is subject to or bound by, any Court Order or Operating Agreement
that could prevent the performance of all or any of the terms of this Agreement,
or with respect to which the performance by Xxxxx Parties of the obligations of
Xxxxx Parties under this Agreement would create a Default under any document
included within the definition of the term "Property" as defined herein.
(xlii) To the actual knowledge of Xxxxx Parties, each Owner LLC has
complied and is in compliance with, and the Property, and the current use,
occupation and condition thereof, do not violate any and all Court Orders and
Laws of any Governmental
-27-
Authority applicable to such Owner LLC or the Property, including, without
limitation, Laws relating to zoning, building codes, antitrust, occupational
safety and health, consumer product safety, product liability, hiring, wages,
hours, employee benefit plans and programs, collective bargaining, withholding
and social security taxes, except as disclosed on Exhibit U annexed hereto and
---------
made a part hereof. Xxxxx Parties have not received notice of any
noncompliance or violation of any such Court Orders and Laws.
(xliii) Intentionally deleted.
(xliv) To the actual knowledge of Xxxxx Parties, all documents,
amendments, side letters and material notices affecting the Ground Leases have
been delivered to Fourmall. To the actual knowledge of Xxxxx Parties, the copies
of the Ground Leases delivered to Fourmall are true, correct and complete.
Exhibit A-2(a) sets forth descriptions of all Ground Leases affecting the
--------------
Premises. All of the Ground Leases are in full force and effect; there are
no disputes with any Ground Lessor (as hereinafter defined) as to the amount of
the rent due under any Ground Lease or the performance of any other obligation
under the Ground Leases; Fashion LLC is not in Default under any Ground Lease
and has not received from any Ground Lessor any written notice claiming a
Default by Fashion LLC under any Ground Lease; Fashion LLC has not delivered to
any Ground Lessor any written notice claiming a Default by such Ground Lessor
under any Ground Lease; to the best knowledge of Fashion LLC there are no
circumstances which, after notice, the expiration of any applicable grace
period, or both, would constitute a default by either Fashion LLC or any Ground
Lessor under any Ground Lease; there are no additional sums due to any Ground
Lessor under any Ground Lease except as set forth in Exhibit A-2(b) annexed
--------------
hereto and made a part hereof.
(xlv) All water, storm and sanitary sewer, gas (if applicable),
electricity, telephone and other utilities serving the Premises are (a) supplied
directly to the Premises by facilities of public utilities through lands as to
which public or private easements exist that will continue to inure to the
benefit of the applicable Owner LLC, (b) to the actual knowledge of Xxxxx
Parties, adequate to service the normal operations of the Premises, and (c) the
cost of installation of such utilities has been fully paid, except insofar as
installation or capital costs of utility service is reflected in ongoing front
foot benefit assessments.
(xlvi) To the actual knowledge of the Xxxxx Parties, all costs and
expenses of any and all labor, materials, supplies and equipment used in the
construction of the Buildings have been paid in full. To the actual knowledge of
the Xxxxx Parties, the roofs and basements of the Buildings are watertight and
free of leaks and there are no material structural defects, latent or patent, at
the Premises. Except as expressly set forth in this Agreement, Xxxxx Parties
have not made any verbal or written representations or warranties whatsoever
with respect to the physical condition of the Property.
(xlvii) To the actual knowledge of Xxxxx Parties, the Premises are
served by public roads which have been completed and are physically and legally
open for use by the public, and the applicable Owner LLC has full access to and
the right to use such roads freely.
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(xlviii) To the actual knowledge of Xxxxx Parties, the Surveys set
forth the number of parking spaces at the Premises for automobiles, which spaces
are sufficient to comply with all Laws and all parking commitments made by the
Owner LLCs under any Tenant Leases or other documents, including, but not
limited to (1) the XXXXXx and (2) the Bridgewater Redevelopment Plan (with
respect to Bridgewater Commons); with respect to Park Xxxxxxx, there is now and
there will be upon the completion of the Penney Building (as hereinafter
defined) in accordance with existing plans and specifications sufficient parking
spaces to comply with all Laws and all parking commitments made by the Park
Xxxxxxx LLC under any Tenant Leases or other documents, including, but not
limited to the Park XXXXX.
(xlix) Intentionally deleted.
(l) Each Mall (other than those portions owned by a party to any
XXXXX that is not an Owner LLC) is assessed for real estate tax purposes as one
wholly independent tax lot, separate from any adjoining land or improvements not
constituting a part of such lot, and no other land or improvements (including,
without limitation, any portion of a Mall owned by a party to a XXXXX other than
an Owner LLC) is assessed and taxed together with any portion of each Mall owned
by an Owner LLC or any portion thereof.
(li) (1) The Pedestrian Bridge Agreement is in full force and effect
and has not been modified or amended; Towson LLC has paid all amounts due under
the Pedestrian Bridge Agreement to the date hereof, if any, has performed all of
its obligations thereunder and, to the best of Xxxxx'x knowledge, there exists
no uncured Default under the Pedestrian Bridge Agreement or event or state of
facts which, with the giving of notice or passage of time, or both, would
constitute a Default thereunder, nor, to the best of Xxxxx'x knowledge, has any
other party to the Pedestrian Bridge Agreement received any notice or other
communication claiming that such a Default or state of facts exists thereunder.
(2) Each XXXXX is in full force and effect and has not been
modified or amended; each Owner LLC has paid all amounts due under each
applicable XXXXX to the date hereof, if any, has performed all of its
obligations thereunder and, to the best of Xxxxx'x knowledge, there exists no
uncured Default under any XXXXX or event or state of facts which, with the
giving of notice or passage of time, or both, would constitute a Default
thereunder, nor, to the best of Xxxxx'x knowledge, has any other party to any
COREA received any notice or other communication claiming that such a Default or
state of facts exists thereunder. Each respective Owner LLC is the "Operator"
(as such term is defined in each applicable XXXXX) under its respective XXXXX.
No Owner LLC has received a notice of dissatisfaction or notice of delinquency
under the XXXXX to which it is a party. To the extent permitted under the
XXXXXx, each applicable Owner LLC (or its respective predecessor-in-interest)
has established a Marketing Fund (as such term is defined in the XXXXXx) and
every other party to the COREAs is currently contributing its respective
allocable share of the expenses of such Marketing Fund; none of the Owner LLCs
is in Default of its obligations with respect to any Marketing Fund. None of the
easements granted under any XXXXX for the benefit of an Owner LLC (or its
predecessor-in-interest) have been terminated or, to the actual knowledge of
Xxxxx Parties, are currently terminable by the grantor of such easement under
the terms of the
-29-
applicable XXXXX. Xxxxx Parties (and to the actual knowledge of Xxxxx Parties,
any predecessor-in-interest thereof), have not received any notice from any
party to a XXXXX of such party's intent to terminate any easement granted under
a XXXXX for the benefit of an Owner LLC (or its predecessor-in-interest).
(3) The Bridgewater Redevelopment Plan is in full force and effect
and has not been modified or amended; Bridgewater LLC has paid all amounts due
under the Bridgewater Redevelopment Plan to the date hereof, if any, has
performed all of its obligations thereunder required to be performed through and
including the date hereof; there exists no uncured Default under the Bridgewater
Redevelopment Plan or event or state of facts which, with the giving of notice
or passage of time, or both, would constitute a Default thereunder, nor, to the
best of Xxxxx'x knowledge, has any other party to the Bridgewater Redevelopment
Plan received any notice or other communication claiming that such a Default or
state of facts exists thereunder.
(4) The Bridgewater Declaration is in full force and effect and has
not been modified or amended; Bridgewater LLC has paid all amounts due under the
Bridgewater Declaration to the date hereof, if any, has performed all of its
obligations thereunder and, to the best of Xxxxx'x knowledge, there exists no
uncured Default under the Bridgewater Declaration or event or state of facts
which, with the giving of notice or passage of time, or both, would constitute a
Default thereunder, nor, to the best of Xxxxx'x knowledge, has any other party
to the Bridgewater Declaration received any notice or other communication
claiming that such a Default or state of facts exists thereunder.
(5) The Detention Basin Agreement is in full force and effect and
has not been modified or amended; Bridgewater LLC has paid all amounts due under
the Detention Basin Agreement to the date hereof, if any, has performed all of
its obligations thereunder and, to the best of Xxxxx'x knowledge, there exists
no uncured Default under the Detention Basin Agreement or event or state of
facts which, with the giving of notice or passage of time, or both, would
constitute a Default thereunder, nor, to the best of Xxxxx'x knowledge, has any
other party to the Detention Basin Agreement received any notice or other
communication claiming that such a Default or state of facts exists thereunder.
(6) The Township of Bridgewater, New Jersey has issued Certificates
of Completion and executed and delivered a quit claim deed and Release of Right
of Reverter with respect to all of the property and improvements constituting
the "Initial Phase I Improvements" (as such term is defined in the Bridgewater
Revised Contract) of Bridgewater Commons.
(7) The County of Xxxxxxx, Colorado has issued a final acceptance
letter for each applicable phase of Park Xxxxxxx, as described in that certain
Subdivision Improvements Agreement (the "SIA"), recorded on September 14, 1995,
in Book 1288 at Page 888, in the official records of Xxxxxxx County, as amended
and/or assigned. Park Xxxxxxx LLC is in full compliance with the terms and
conditions of the SIA.
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(8) Neither Park Xxxxxxx LLC nor, to the best knowledge of Xxxxx,
any predecessor-in-interest of Park Xxxxxxx LLC, has agreed to any amendment or
modification of any provision of the Park XXXXX relating to PIFs under the PIF
Bond other than such an amendment or modification which has been approved by
Hypo Bank in writing. Not more than ten percent (10%) of the floor area of the
Developer (as defined in the Park XXXXX) mall stores at Park Xxxxxxx is
currently being operated for service-type uses.
(9) The Seven Hundred Fifty Thousand Dollar ($750,000) termination
fee payable to Mervyn's pursuant to that certain Termination of Rights
Agreement, dated as of February 17, 1998, between Fashion Place Associates and
Mervyn's ("Termination of Right Agreement") with respect to Fashion Place Mall
was timely made and the Termination of Rights Agreement has become effective.
(10) The Bridgewater Revised Contract is in full force and effect
and has not been modified or amended; Bridgewater LLC has paid all amounts due
under the Bridgewater Revised Contract to the date hereof, if any, and has
performed all of its obligations thereunder required to be performed through and
including the date hereof; there exists no uncured Default under the Bridgewater
Revised Contract (including, without limitation, with respect to Phase II (as
such term is defined in the Bridgewater Revised Contract) or event or state of
facts which, with the giving of notice or passage of time, or both, would
constitute a Default thereunder, nor, to the best of Xxxxx'x knowledge, has any
other party to the Bridgewater Revised Contract received any notice or other
communication claiming that such a Default or state of facts exists thereunder.
(lii) Xxxxx Parties do not know of any facts or circumstances not
disclosed to Fourmall which indicate that Xxxxx Parties, the LLC or the Property
may be materially adversely affected or which otherwise should be disclosed to
Fourmall in order to make any of the representations or warranties made herein
on the part of Xxxxx Parties not misleading in any material respect. No
representation or warranty by Xxxxx Parties or by any Affiliates or consultants,
accountants, auditors, attorneys, agents, employees and other representatives
thereof ("Representatives") contained in this Agreement, and no statement made
by Xxxxx Parties or any Representative of the foregoing contained in any
exhibit, certificate or other instrument furnished to Fourmall under or in
connection with this Agreement, contains any untrue statement of any material
fact, or omits to state any material fact necessary in order to make the
statements contained herein or therein not misleading in any material respect.
(liii) For purposes of Section 514(c)(9) of the Code, after taking into
account Section 514(c)(9)(G) or other applicable exemption:
(1) The Premises are not currently, and will not be at the time of
the Closing, leased to any Xxxxx Party, the LLC or any constituent member of any
of the foregoing or any entity which bears a relationship to any of the
foregoing or any constituent member of any of the foregoing described in Section
267(b) or Section 707(b) of the Code, and
(2) Neither the Premises nor any interest in the LLC is being
acquired from, and at the time of the Closing the Premises will not be leased
to, any person
-31-
which (i) bears a relationship described in subparagraph (C), (E) or (G) of
Section 4975(e)(2) of the Code to (x) any plan, fund, arrangement, program or
account (each, a "Plan") having an interest in the Commingled Pension Trust Fund
(X.X. Xxxxxx Strategic Property Fund) of Xxxxxx Guaranty Trust Company of New
York, as Trustee under Declaration of Trust dated December 9, 1960, as amended,
or (y) New York State Teachers' Retirement System ("NYSTRS") or (ii) bears a
relationship described in subparagraph (F) or (H) of Section 4975(e)(2) of the
Code to any person which bears a relationship described in subparagraph (C), (E)
or (G) of Section 4975(e)(2) of the Code to any Plan referred to in clause (x)
above or to NYSTRS; provided, however, that for purposes of the immediately
preceding clauses (i) and (ii), any relationship to subparagraph (G) of Section
4975(e)(2) of the Code shall be determined as though such subparagraph cross-
referenced only subparagraphs (C) and (E) (and not subparagraphs (A), (B) and
(D)).
(liv) No proceedings for the correction of the assessed valuation of
the Premises (the "Proceedings") have been filed on behalf of any Owner LLC and
is pending, other than as set forth in Exhibit X annexed hereto and
---------
made a part hereof. No party hereto shall agree to any settlement or
termination of the Proceedings without the prior written consent of the other
parties, which consent shall not be unreasonably withheld or delayed.
(lv) During the twelve (12) months preceding the date hereof, there
have been no revenues, receipts or other items of gross income accruing to Xxxxx
Parties relating to the Property and there are no contractual or other
arrangements currently in effect under which it is anticipated there will or
could be any revenues, receipts or items of gross income accruing to Xxxxx
Parties relating to the Property, except for (1) payments under the Tenant
Leases of "rents from real property" within the meaning of Section 512(b)(3) of
the Code, (2) cost reimbursements and (3) any receipts listed on Exhibit Y,
---------
attached hereto and made a part hereof.
(lvi) Construction of a foundation pad at Park Xxxxxxx (the "Pad") was
completed by the predecessor-in-interest of Park Xxxxxxx LLC on certain land to
be transferred to Penney (the "Penney Parcel") and the Pad has been delivered to
Penney. Penney is currently constructing a building having at least one hundred
thousand (100,000) square feet of floor space (the "Penney Building") on the
Pad. The Penney Building shall be completed on or about May 3, 1999. Each of the
parties to the Park XXXXX have approved the construction of (1) the Pad, (2) the
Penney Building and (3) the parking structure constructed in connection with the
construction of the Penney Building (the "Parking Structure"). Penney shall
agree to be bound by the terms of the Park XXXXX, including, but not limited to,
assessment, collection and remittance to the Trustee of PIFs. In connection with
the construction of the Penney Building, THCI has completed and paid for in full
all of the costs attributable to following items: (x) the construction of the
Parking Structure (which Xxxxx represents has not less than the number of
parking spaces required under the Park XXXXX and the undated separate agreement
between Penney and Park Xxxxxxx LLC (the "Penney Agreement")), (y) the
construction of a pedestrian bridge and (z) the costs of the Developer under the
Penney Agreement, for (1) extension of utility lines to the Penney Store,
(2) installation and paving of all parking areas, roadways, sidewalks and other
common facilities, (3) installation of exterior illumination, (4) installation
of storm drainage and/or sanitary sewer systems, (5) installation of landscaping
and (6) connection
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of the Penney Store to the Developer's court and enclosed mall in accordance
with plans previously approved by Penney, each of the foregoing items (x)
through (z) consistent with the requirements of the Penney Agreement, the Park
XXXXX and the proposed third amendment to the Park XXXXX in the form of the
draft dated January 25, 1999 previously delivered by Xxxxx to Fourmall (the
"Draft Third Amendment), a copy of the cover page of which is annexed hereto as
Exhibit EE and made a part hereof. The only outstanding obligations of the
----------
Developer under the Park XXXXX with respect to the construction of the Penney
Building are (a) the recording of the amended plat of Park Xxxxxxx Mall, (b) the
execution and recording of the Third Amendment to the Park XXXXX, (c) the
preparation and distribution of a revised survey of Park Xxxxxxx Mall, (d) the
delivery of a deed and related closing documents for the Penney Parcel, (e) the
delivery to Penney of a title insurance policy with respect to the Penney Parcel
and (f) the land swap transaction with Dillard described in subsection (lviii)
below.
(lvii) Except for the Penney Building, all certificates of occupancy
have been issued for all Buildings and, to the actual knowledge of Xxxxx
Parties, for all tenant spaces, if applicable.
(lviii) No consideration is due or payable from the LLC, any Holding
LLC or any Owner LLC to Dillard in connection with Dillard's transfer to Penney
of the portion of its land at Park Xxxxxxx Mall marked as "Parcel A" on the
diagram annexed hereto as Exhibit II and made a part hereof, other than the
----------
transfer to Dillard of a portion of the land at Park Xxxxxxx Mall owned
by Park Xxxxxxx LLC marked as "Parcel B" on Exhibit II.
----------
(b) The representations and warranties of Xxxxx contained in
this Agreement, or otherwise made in writing in connection with the transactions
contemplated hereby, will be true and correct in all material respects on and as
of the Closing Date with the same force and effect as though such
representations and warranties had been made on and as of the Closing Date. To
the extent any matter or item is separately and clearly identified in the
operating budget delivered to Fourmall in connection with the Closing, such
matter or item shall be deemed to have been disclosed by Xxxxx to Fourmall. In
the event facts and circumstances change from and after the date of this
Agreement which facts and circumstances formed the basis of any representation
or warranty of Xxxxx set forth in this Agreement, Xxxxx shall promptly notify
Fourmall and Xxxxx shall modify, update and/or supplement any such
representations and/or warranties, exhibits and schedules attached to or
delivered with this Agreement through the Closing, provided, however, nothing
herein shall be deemed to or construed as a cure of any default arising from any
representation or warranty which shall have been false or misleading in any
material respect when made, and, provided, further, that if any such
modification, update or supplement includes any matter which will have a
material adverse affect on the value or current use of the Property, Fourmall
shall have the right to terminate this Agreement by notifying Xxxxx, in writing,
within five (5) days of the receipt of such updated representation, warranty,
exhibit or schedule hereto.
(c) The representations and warranties of Xxxxx Parties shall
survive the Closing for a period of two (2) years.
-33-
(d) Fourmall represents and warrants to Xxxxx that:
(i) This Agreement constitutes the legal, valid and binding obligation
of Fourmall, enforceable against Fourmall in accordance with its terms. Fourmall
has taken all necessary action to authorize and approve the execution and
delivery of this Agreement and the consummation of the transactions contemplated
by this Agreement.
(ii) The execution and delivery of this Agreement and the performance
by Fourmall of its obligations hereunder do not and will not conflict with or
violate any law, rule, judgment, regulation, order, writ, injunction or decree
of any court or governmental or quasi-governmental entity with jurisdiction over
Fourmall, including, without limitation, the United States of America and the
State of Delaware, or any political subdivision of any of the foregoing, or any
decision or ruling of any arbitrator to which Fourmall is a party or by which
Fourmall is bound or affected.
(iii) Fourmall is not a party to, or is subject to or bound by, any
agreement, judgment, order, writ, injunction or decree of any court or
governmental body that could prevent the performance of all or any of the terms
of this Agreement.
13. Deliveries to be made on the Closing Date.
-----------------------------------------
(a) Xxxxx Parties' Documents: Xxxxx Parties shall deliver or cause to be
------------------------
delivered to Fourmall on the Closing Date the following documents (collectively,
"Xxxxx Parties' Deliveries"):
(i) FIRPTA Affidavit. The affidavit referred to in Section 1445 of
----------------
the Code with all pertinent information confirming that Xxxxx is not a foreign
person, trust, estate, corporation to partnership.
(ii) Termination Agreements. Executed termination agreements or
----------------------
other evidence reasonably satisfactory to Fourmall that any existing management
agreement (each, a "Management Agreement") for the Property has been duly and
validly terminated effective upon the Closing and at no cost to Fourmall, the
LLC, the Holding LLCs or the Owner LLCs or the Property.
(iii) Xxxxx Parties' Authority. Such proof and evidence of Xxxxx
------------------------
Parties' authority and authorization to enter into the transaction contemplated
hereby, and such proof of the power and authority of the individual(s) executing
and/or delivering any instruments, documents or certificates on behalf of any
entity to act for and bind such entity, as may be reasonably required by the
Title Company or Fourmall, including, without limitation, any and all consents
of any members, directors, partners, limited partners or other persons whose
consent to the transactions contemplated hereby is required in accordance with
Xxxxx Parties' respective internal organizational structures.
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(iv) Amended and Restated LLC Agreement. A duly executed Amended and
----------------------------------
Restated LLC Agreement and any certificates required by the law of the State of
Delaware in the form of Exhibit Z annexed hereto and made a part hereof.
---------
(v) Good Standing Certificates. Good standing Certificates (or
--------------------------
analogous documents) with respect to the LLC and each Xxxxx Party from the
Secretary of State or state taxing authority of the state in which each such
entity is organized and authorized to conduct business.
(vi) Rent Roll. The Rent Roll, updated within five (5) days prior
---------
to the Closing Date, duly executed by Xxxxx to certify its accuracy.
(vii) Updated Exhibits. Exhibits C, E, I, K, L, M, N, O, P, Q, R,
----------------
S, U, W, X and Y updated as of the Closing Date, duly executed by Xxxxx to
certify their accuracy.
(viii) Property Management Agreements. Four Property Management
------------------------------
Agreements (one for each Mall), in the form of Exhibit AA annexed hereto and
----------
made a part hereof.
(ix) Additional Land Option Agreement. An agreement and recordable
--------------------------------
memorandum thereof (collectively, the "Additional Land Option Agreement")
between Fourmall, as an optionee, and The Xxxxx Company, a Maryland corporation
("Xxxxx Company") and HRD, as optionors, in the form of Exhibit BB annexed
----------
hereto and made a part hereof, granting to Fourmall certain rights in certain
additional undeveloped land proximate to Bridgewater Commons, as more
particularly described in the Additional Land Option Agreement.
(x) Indemnity Agreement. A duly executed indemnity agreement (the
-------------------
"Indemnity Agreement") among Xxxxx Company, as indemnitor, and Fourmall, as
Indemnitee, in the form of Exhibit CC annexed hereto and made a part hereof.
----------
(xi) TrizecHahn Rights Assignment. A duly executed assignment of the
----------------------------
TrizecHahn Rights by Xxxxx Company in favor of the LLC, in the form of
Exhibit DD attached hereto and made a part hereof.
----------
(xii) Opinion of Counsel. An opinion of counsel for Xxxxx Parties,
------------------
dated as of the Closing Date, with respect to the authorization of and due
execution by, Xxxxx Parties and HRD with respect to this Agreement and any other
documents executed and delivered by any of the Xxxxx Parties in connection with
the Closing, including, without limitation, the Indemnity Agreement and an
opinion of counsel for The Xxxxx Company with respect to the enforceability of
the Indemnity Agreement, in form and substance acceptable to Fourmall.
(xiii) Phase II Agreement. An agreement between HRD and
------------------
Bridgewater LLC in a form acceptable to Fourmall concerning the allocation of
obligations under the Revised Contract with respect to certain property near
Bridgewater Commons commonly known as Phase II.
-35-
(xiv) TTC Member Estoppel and Release. An estoppel certificate and
-------------------------------
release of Liabilities as of the Closing Date in a form reasonably acceptable to
Fourmall, executed by TTC Member in favor of Towson LLC and its constituent
members.
(xv) Four State Facility Corporation Documents. A Certificate of
-----------------------------------------
Incorporation filed with the Secretary of State of Delaware, By-Laws, duly
executed written consent of the board of directors of Four State Facility
Corporation and two (2) assignment and assumption agreements with respect to two
(2) certain agreements with U S WEST Communications, Inc. covering Park Xxxxxxx
and Fashion Place Mall, all in form and substance acceptable to Fourmall.
(xvi) Other Documents and Deliveries. Such other documents,
------------------------------
instruments and deliveries customarily delivered by sellers of property similar
to the Property or by sellers of membership interests in limited liability
companies owning, directly or indirectly, property similar to the Property, or
as may be reasonably required by the Title Company or Fourmall.
(b) Fourmall's Deliveries. Fourmall shall deliver or cause to be
---------------------
delivered on the Closing Date the following:
(i) Fourmall Initial Capital Contribution. On the Closing Date,
-------------------------------------
Fourmall shall make the Fourmall Initial Capital Contribution to the LLC
pursuant to Section 2 hereof.
(ii) Intentionally deleted.
(iii) Amended and Restated LLC Agreement. Fourmall shall
counterexecute the Amended and Restated LLC Agreement.
(iv) Additional Land Option Agreement. Fourmall shall counterexecute
the Additional Land Option Agreement.
14. Intentionally Deleted.
---------------------
15. Intentionally Deleted.
---------------------
16. Xxxxx Parties' Default. If Xxxxx Parties shall default in performance
----------------------
of their obligations under this Agreement, then, in addition to all other legal
remedies available to Fourmall by reason of Xxxxx Parties' default, Fourmall
shall be entitled to any or all of the following, in the sole and absolute
discretion of Fourmall (a) the right to terminate this Agreement and the payment
by Xxxxx of all costs incurred by Fourmall in connection with this transaction,
including, without limitation, Fourmall's legal fees and disbursements and costs
incurred in connection with Fourmall's due diligence; (b) the right to obtain
specific performance of Xxxxx'x obligations hereunder and injunctive relief;
(c) the right to proceed against Xxxxx for damages; and (d) all other remedies
in equity and/or at law available to Fourmall. If Fourmall is successful in
obtaining specific performance, Xxxxx shall pay to Fourmall all costs and
expenses incurred in such action and proceeding, including, without limitation,
reasonable attorneys' fees and expenses.
17. Fourmall's Default. If Fourmall shall default in performance of its
------------------
obligations under this Agreement, the sole right of Xxxxx shall be to terminate
this Agreement, and receive payment from Fourmall for costs and legal fees
incurred by Xxxxx in connection with this Agreement ("Xxxxx'x Costs"), but in no
event shall such payment exceed $250,000. Except for
-36-
the payment of Xxxxx'x Costs as set forth in the preceding sentence, Xxxxx shall
not seek or obtain any money or other judgment against Fourmall or any disclosed
or undisclosed partner, Affliate, successor, assign, investment adviser,
trustee, principal, officer, director, shareholder, agent, manager, fiduciary or
employee of Fourmall or against the assets or estate of Fourmall or any of the
foregoing persons.
18. Operations Prior to Closing. Between the date of the execution of this
---------------------------
Agreement and the Closing Date, Xxxxx Parties shall, at no cost or expense to
Fourmall:
(a) Continue to maintain and to make all repairs and replacements to the
Property and the Personalty in accordance with its normal practices and
procedures so as to keep the Property and the Personalty in substantially its
present condition, and operate and manage the Property and the Personalty in the
same manner as it has operated the Property prior to the date hereof;
(b) Not make any alterations, renovations, additions or the like to the
Property without Fourmall's prior written consent;
(c) Not enter into any new operating agreement or tenant lease or accept
the surrender of any of the Operating Agreements or Tenant Leases or grant any
concession, rebate, allowance or free rent at the Property without Fourmall's
prior written approval. Xxxxx Parties shall submit to Fourmall a copy of any
renewal, expansion, modification, amendment or termination of any Operating
Agreement or Tenant Lease, including any Tenant Inducement Costs (as hereinafter
defined) and leasing commissions to be incurred in connection therewith, or any
new operating agreement or tenant lease which any Owner LLC wishes to execute
between the date of this Agreement and the Closing Date for Fourmall's approval.
To the extent any such proposed new tenant lease or proposed renewal, expansion,
modification, amendment or termination of any Tenant Lease requires the landlord
thereunder to contract with any contractor in respect of any related Tenant
Inducement Costs, a copy of such proposed contract shall be included with such
proposed new tenant lease or proposed renewal, expansion, modification,
amendment or termination of any Tenant Lease and shall be subject to Fourmall's
prior written approval. Fourmall agrees to notify Xxxxx in writing within ten
(10) business days after Fourmall's receipt of such proposed new tenant lease or
proposed renewal, expansion, modification, amendment or termination of any
Tenant Lease (including any related contract) of either Fourmall's approval or
disapproval. In the event Fourmall shall inform Xxxxx that Fourmall does not
approve any such renewal, expansion, modification, amendment or termination of
any such Operating Agreement or Tenant Lease or of any new operating agreement
or tenant lease (including in each case any related contract), which approval
shall not be unreasonably withheld, Xxxxx shall not enter into the same.
Notwithstanding any provision in this clause (c) to the contrary, Owner LLCs
shall be permitted to enter into any lease, license or other agreement, or
renew, expand, modify, amend or terminate any Tenant Lease to the extent such
new lease, license, other agreement or Tenant Lease constitutes a lease, license
or agreement covering any (i) month-to-month Tenant, (ii) kiosks or (iii) carts,
and the same is terminable upon no longer than thirty (30) days notice.
-37-
(d) Not incur any Liabilities other than in the ordinary course of its
business, and any such Liabilities shall be satisfied at or prior to the Closing
and evidence of such satisfaction shall be delivered at the Closing.
(e) Promptly provide Fourmall with copies of all notices and other
correspondence received from, or sent to, the Existing Lenders under or with
respect to the Loan Documents.
(f) Promptly notify Fourmall of any damage to or destruction of all or any
portion of the Property.
(g) Promptly deliver to Fourmall copies of any notices received from
Governmental Authority or quasi-governmental authorities with respect to any
(i) violations, (ii) condemnation or similar taking of all or any portion of the
Property or (iii) with respect to Hazardous Substances located in, on or about
the Property.
(h) Promptly notify Fourmall of any notices or other correspondence given
or received by Xxxxx Parties under or in connection with the Operating
Agreements, Tenant Leases, Loan Documents and Ground Leases.
(i) Pay all real estate taxes and insurance premiums in a timely manner.
(j) Without limiting the generality of Section 18(a), not remove any
Personalty listed on Exhibit R unless the same is immediately replaced.
---------
Replacements shall be (x) free and clear of any liens and encumbrances,
(y) of quality at least equal to the replaced items, and (z) deemed included in
the sale, without cost or expense to Fourmall.
(k) Without limiting the generality of Section 18(a), (i) keep all
existing insurance policies affecting the Property or any portion thereof or
providing insurance coverage to the LLC, the Holding LLCs and the Owner LLCs, or
any of them, in full force and effect, (ii) use due diligence and its good faith
reasonable efforts to keep in full force and effect and/or renew all Licenses
and Permits, (iii) make all regular payments of interest and principal on the
Existing Loans and perform all obligations of the borrower under the Loan
Documents, (iv) provide all services and continue to operate, manage and
maintain the Property (including mechanical equipment of every kind used in the
operation thereof) in such condition so that the Property shall be in the same
condition at the Closing as on the date hereof, reasonable wear and tear
excepted, (v) timely comply with all governmental regulations, (vi) keep
Fourmall timely advised of any repair or improvement required to keep the
Property in such condition as aforesaid and which costs are not included within
the operating budget approved by Fourmall and which exceed Fifty Thousand
Dollars ($50,000.00), and (vii) pay all obligations and trade creditors in the
normal course of business and not defer any expenses or costs which would be
paid or incurred in the normal course of business.
(l) Not hereafter engage any new employees at the Property or modify,
renew, extend, replace, or otherwise change any of the terms, covenants or
conditions of the Operating Agreements, Loan Documents, Tenant Leases or Ground
Leases, or enter into new tenant leases,
-38-
Operating Agreements, Loan Documents or any other obligations or agreements
affecting the Property, without the prior written consent of Fourmall, which
consent shall not be unreasonably withheld. Xxxxx Parties shall not accept from
any of the Tenants payment of rent more than one (1) month in advance or,
without the prior written consent of Fourmall, which consent shall not be
unreasonably withheld, apply any security deposit to rent due from any Tenant.
Nothing contained herein shall restrict the right of any Owner LLC to grant
month-to-month extensions of existing Tenant Leases in the ordinary course of
business at market rates, nor shall anything herein restrict the right of any
Owner LLC to enter into Operating Agreements in the ordinary course of business
so long as such Operating Agreements can be terminated, without penalty or
payment by such Owner LLC upon thirty (30) days or less notice.
(m) Pay in full, prior to the Closing, all then due brokerage commissions
(other than with respect to new leases approved by Fourmall or with respect to
any extension or renewal options exercised from and after the date hereof for
which a commission is disclosed on Exhibit I; provided, however, if any Owner
--------- -------- -------
LLC shall have paid any brokerage commissions prior to the Closing with respect
to new leases approved by Fourmall or with respect to any extension or renewal
options exercised from and after the date hereof for which a commission is
disclosed on Exhibit I, Fourmall shall reimburse Xxxxx for its pro-rata
---------
share of such expense provided Xxxxx Parties deliver reasonable evidence that
Xxxxx Parties incurred such expense).
(n) Promptly cure and remove any Violations;
(o) Use commercially reasonable efforts to obtain the Lender's Consents;
(p) Use commercially reasonable efforts to obtain an original estoppel
certificate from each Existing Lender in form and substance reasonably
acceptable to Fourmall (collectively, the "Existing Lenders' Estoppel
Certificates");
(q) Use commercially reasonable efforts to obtain, prior to the earlier to
occur of (i) the Designated Date or (ii) the date which is ten (10) days prior
to the Closing Date, tenant estoppel certificates in the form of Exhibit FF
----------
annexed hereto and made a part hereof (the "Tenant Estoppel Certificates")
executed by each of the Tenants, and to deliver originals thereof to Fourmall
promptly upon receipt;
(r) Use commercially reasonable efforts to obtain an original estoppel
certificate from each lessor under the Ground Leases (collectively, the "Ground
Lessors") in form and substance reasonably acceptable to Fourmall (collectively,
the "Ground Lessor Estoppel Certificates");
(s) Use commercially reasonable efforts to obtain the Other Estoppels (as
hereinafter defined), and to deliver originals thereof to Fourmall promptly
upon receipt.
(t) Shall not:
(i) change the governing instruments of the LLC or Xxxxx Parties or
admit any new members to the LLC or Xxxxx Parties;
-39-
(ii) guarantee or agree to guarantee the obligations of others;
(iii) make any capital expenditure or commit itself to make any
capital expenditure;
(iv) enter into any new Operating Agreement except as otherwise
provided above;
(v) waive any rights of value;
(vi) sell, lease (other than in accordance with the Tenant Leases),
encumber or otherwise dispose of any assets;
(vii) without limiting any of the foregoing, take or refrain from
taking any action the result of which would render any representation or
warranty made to Fourmall in or in connection with this Agreement inaccurate in
any material respect when deemed made on and as of the Closing Date;
(viii) agree to any modification, amendment, extension or termination
(or the like) of any of the Loan Documents without the prior written consent of
Fourmall; or
(ix) agree to any modification to the draft Third Amendment to the
Park XXXXX previously provided to Fourmall by Xxxxx without the prior written
consent of Fourmall.
(u) Xxxxx Parties' Obligations. From the date hereof to the Closing,
--------------------------
Xxxxx Parties shall use their best efforts to preserve their business
organization intact, keep available to the Owner LLCs the services of present
employees of the Property and preserve for the Owner LLCs the present
relationship between the Property, on the one hand, and its Tenants, suppliers,
customers and others having business relations with it, on the other. Xxxxx
Parties shall cause HRD to withdraw from the LLC as a member of the LLC
simultaneously with Fourmall's making of the Fourmall Capital Contribution and
the issuance of the Fourmall LLC Interests to Fourmall.
(v) Other Transactions. Xxxxx Parties and/or their Affiliates will not
------------------
directly or indirectly, through any employees, representatives or otherwise
(i) solicit, initiate or encourage submission of proposals or offers from any
person or entity relating to the acquisition of all or any part of any interest
in the LLC, any Holding LLC, Owner LLC or the Property, whether through any
lease (other than the Tenant Leases), acquisition of stock, membership or
partnership interests or assets or a merger (collectively, "Purchase Proposal")
or (ii) participate in any discussions or negotiations regarding, or furnish to
any other person or entity any information with respect to, or otherwise
cooperate in any way with or assist, facilitate or encourage, a Purchase
Proposal.
(w) Public Announcements. Xxxxx (and its Affiliates) and Fourmall
-------------------
agree that they will consult with each other before issuing any
-40-
press releases or otherwise making any public statements with respect to this
Agreement or the transactions contemplated hereby and shall not issue any press
release or make any public statement prior to such consultation and agreement as
to the form and content of such press release or public statement, except as may
be required by law.
(x) Notification. Xxxxx shall give Fourmall prompt written notice of
------------
(i) the existence of any fact or the occurrence of any event which constitutes,
or with the giving of notice or the passage of time or both would constitute, a
breach of any representation or warranty of Xxxxx Parties made herein or
pursuant hereto and (ii) the taking of any action by Xxxxx Parties that would,
in any material respect, breach or violate, or constitute a default under, any
agreement or covenant of Xxxxx Parties made herein or pursuant hereto. The
giving of any such notice shall not affect, modify or limit in any way any
representation, warranty, agreement or covenant of Xxxxx Parties made herein or
pursuant hereto or Fourmall's right to rely thereon.
(y) Xxxxx shall pay or cause to be paid all sums payable by IDOT Borrower
in connection with the securitization of the loan secured in part by the IDOT,
including any post-securitization costs to obtain lender's consent under the
IDOT to the transactions contemplated by this Agreement, costs of amending the
securitization offering statement and the like; provided, however, if all such
-------- -------
costs are not paid or caused to be paid by Xxxxx prior to the Closing, Xxxxx
shall and hereby does indemnify and hold harmless Fourmall from and against the
payment of any such costs.
(z) The provisions of this Section 18 shall survive the Closing.
19. Conditions of Fourmall's Obligations to Close. The obligations of
---------------------------------------------
Fourmall under this Agreement are, at the option of Fourmall, subject to the
conditions set forth below, which conditions may be waived by Fourmall without
releasing or waiving any of its rights hereunder.
(a) Agreement and Conditions. On or before the Closing Date, Xxxxx
------------------------
Parties shall have, in all material respects, complied with and duly performed
all agreements and conditions on their part to be complied with and performed
pursuant to or in connection with this Agreement on or before the Closing Date.
(b) Representations and Warranties. The representations and warranties
------------------------------
of Xxxxx Parties contained in this Agreement, or otherwise made in writing in
connection with the transactions contemplated hereby, shall be true and correct,
in all material respects, on and as of the Closing Date with the same force and
effect as though such representations and warranties had been made on and as of
the Closing Date, and on the Closing Date Xxxxx shall execute and deliver to
Fourmall a certificate to the foregoing effect (the "Xxxxx Closing
Certificate").
(c) No Legal Proceeding. No Action by a governmental or quasi-
-------------------
governmental authority shall have been instituted to restrain or prohibit the
assumption by Fourmall, or the assignment by Xxxxx, of the LLC Interests, and on
the Closing Date there will be no Actions pending against or affecting the LLC,
the Property or Xxxxx Parties which involve a demand for any judgment or
liability, not covered by insurance, and which may result in any
-41-
material adverse change in the business, operations, properties or assets or in
the condition, financial or otherwise, of the LLC, the Property or Xxxxx
Parties.
(d) Deliveries. Fourmall shall have received the deliveries to be
----------
made by Xxxxx Parties pursuant to Section 13.
(e) Consents and Approvals. Xxxxx Parties shall have (i) delivered or
----------------------
caused to be delivered to Fourmall the consent of any of the Existing Lenders or
any other party whose consent to the transactions contemplated by this Agreement
is required under the Loan Documents, and (ii) obtained all approvals under any
Laws required to be obtained in connection with this Agreement.
(f) Title. The Owner LLCs shall own good, marketable and insurable
-----
title to the Premises, subject only to the Permitted Encumbrances and the
Mortgages, insured by the Title Company pursuant to the Title Policy, in the
amounts set forth on Exhibit G and in conformity with the requirements of
---------
Section 4(b).
(g) Loan Documents. The Loan Documents shall be in full force and
--------------
effect on the Closing Date, with no defaults thereunder, and with no right to
accelerate occurring thereunder by reason of the transactions contemplated under
this Agreement. The Loan Documents shall not have been modified or amended
without Fourmall's consent after the date of this Agreement.
(h) Tenant Estoppels. Xxxxx Parties shall have delivered when
----------------
received by Xxxxx Parties, original executed Tenant Estoppel Certificates in the
form of Exhibit FF from any Tenants as shall be required by Fourmall.
----------
(i) Pedestrian Bridge Estoppel. Xxxxx Parties shall have delivered the
--------------------------
Pedestrian Bridge Estoppel.
(j) Existing Lenders' Estoppel Certificates. Xxxxx Parties shall have
---------------------------------------
delivered all of the Existing Lender Estoppel Certificates.
(k) Ground Lessors' Estoppel Certificate. Xxxxx Parties shall have
------------------------------------
delivered all of the Ground Lessors' Estoppel Certificates.
(l) Majors' Estoppels. Xxxxx Parties shall have delivered to Fourmall
-----------------
on or prior to the Closing Date an original estoppel certificate from each party
described as a "Major" under the XXXXXx in form and substance acceptable to
Fourmall.
(m) Intentionally Deleted.
---------------------
(n) Park Xxxxxxx Survey and Amended Park XXXXX. Xxxxx Parties shall
------------------------------------------
not have agreed to any material modification to the form of the Draft Third
Amendment. Park Xxxxxxx LLC, as Developer under the Park XXXXX, shall not be in
Default of its obligation to
-42-
deliver a survey of Park Xxxxxxx to Xxxxxx, Xxxxxx and Mercantile, their
successors and/or assigns, as required under the Park XXXXX.
20. Conditions of Xxxxx'x Obligations to Close. The obligations of Xxxxx
------------------------------------------
under this Agreement are, at the option of Xxxxx, subject to the following
express conditions, which conditions may be waived by Xxxxx without releasing or
waiving any of its rights hereunder.
(a) Agreements and Conditions. On or before the Closing Date, Fourmall
-------------------------
shall have, in all material respects, complied with and duly performed all of
the agreements and conditions on its part required to be complied with or
performed pursuant to this Agreement on or before the Closing Date.
(b) Representations and Warranties. The representations and warranties
------------------------------
of Fourmall contained in this Agreement shall be true and correct, in all
respects, on and as of the Closing Date with the same force and effect as though
such representations and warranties had been made on and as of the Closing Date.
(c) Deliveries. Xxxxx shall have received the deliveries to be made by
----------
Fourmall pursuant to Section 13.
(d) Consents. Xxxxx shall have obtained the Lenders' Consents to the
--------
transfer of the LLC Interests to the extent required under the Loan Documents.
21. Apportionments.
--------------
(a) Except as expressly set forth herein to the contrary in this Section
21, all items of income and expense at the Property shall be apportioned between
Xxxxx and Fourmall on a per diem basis in the manner specified in clause (f)
below. To the extent that all information, bills and invoices are not available
at Closing to allow for the apportionment of any items of income and expense,
Xxxxx and Fourmall agree to reconcile the apportionments within thirty (30) days
after Closing and re-reconcile the apportionments within ninety (90) days after
Closing (based upon preliminary financial information provided by Xxxxx'x
independent accountant) or such later time pursuant to clause (c) below.
(b) The following items shall be apportioned as of 11:59 PM of the day
immediately preceding the Closing Date:
1. Fixed rents, additional rents, percentage rents and all other sums
and credits due or payable under the Tenant Leases, as and when collected,
subject to the provisions of clause (g) of this Section 21;
2. Real estate taxes on the Premises, on the basis of the fiscal year
for which the same are levied, imposed or assessed, subject to the provisions of
clause (e) of this Section;
-43-
3. Charges for water, sewer rents, electricity, steam, gas and
telephone at the Premises, which are not metered or otherwise charged directly
to Tenants under the Tenant
-44-
Leases; provided that if the consumption of any of such utilities is measured by
meters, Xxxxx Parties at the Closing shall furnish a current reading of each
meter; and further provided that if there is not a meter or if the current xxxx
for any of such utilities has not been issued prior to the Closing Date, the
charges therefor shall be adjusted at the Closing on the basis of the charges
for the prior period for which bills were issued and shall be further adjusted
when the bills for the current period are issued;
4. Fuel at the Premises, if any, at such Owner LLC's cost therefor
(as determined by such Owner LLC's fuel supplier);
5. Amounts paid or payable under transferable Operating Agreements;
6. Premiums on insurance policies or renewals of those expiring prior
to the Closing;
7. Interest under the Mortgages;
8. Rents and other charges due under the Ground Leases;
9. Amounts paid or payable under the COREAs; and
10. Any other items of income, operating expenses or other items
pertaining to the Property which are customarily prorated between a purchaser
and seller of property similar in character to the Property in the areas in
which the Property is located.
(c) If, on the Closing Date, any items of additional rent or percentage
rent under the Tenant Leases or CAM charges under the COREAs shall not have been
ascertained, then such items shall be adjusted retroactively as and when the
same are ascertained.
(d) Xxxxx Parties shall maintain and make available to Fourmall any books
or records necessary for the retroactive adjustment of any item pursuant to
clause (c) of this Section.
(e) If the Closing shall occur before the real estate tax rate is fixed,
the apportionment of real estate taxes shall be based upon the tax rate for the
next preceding year applied to the latest assessed valuation.
(f) All apportionments made under this Agreement shall be calculated (1) as
between Xxxxx and the LLC as though Xxxxx were contributing its interests in the
Holding LLCs and the Owner LLCs to the LLC and then (2) Xxxxx and Fourmall shall
share in the credits and debits of the LLC in proportion to their respective
interests in the LLC immediately following the Closing.
(g) If any existing Tenant is in arrears in the payment of rent on the
Closing Date, the applicable Owner LLC shall use reasonable efforts to collect
any such rent arrearages and any and all rents received from such Tenant after
the Closing shall be applied in the following order of priority: (i) first to
any month or months following the month in which the Closing occurred (provided,
however, that no rent received shall be applied to rent due for any
-45-
month subsequent to the month in which it is received); (ii) then to the month
in which the Closing occurred; and (iii) then to the months preceding the month
in which the Closing occurred. If rents or any portion thereof received by the
applicable Owner LLC after the Closing are payable to the other party by reason
of this allocation, the appropriate sum, less a proportionate share of any
reasonable attorneys' fees, costs and expenses of collection thereof, shall be
promptly paid to the other party, which obligation shall survive the Closing.
(h) Notwithstanding anything contained herein to the contrary, in
connection with (1) any new tenant lease or (2) any amendment or other
modification to any existing Tenant Lease approved by Fourmall, Fourmall shall
reimburse Xxxxx at Closing for its pro-rata share of any amounts expended by any
Owner LLC for all initial Tenant Inducement Costs and leasing commissions under
such new tenant leases or modified Tenant Leases in the amounts indicated in the
copies of such documents delivered to Fourmall in connection with requesting
Fourmall's consent to such new tenant lease or modification of existing Tenant
Lease. For purposes of this Agreement, the term "Tenant Inducement Costs" shall
mean any out-of-pocket payments required to be paid under a Tenant Lease by the
landlord thereunder to or for the benefit of the tenant thereunder which is in
the nature of a tenant inducement, including, without limitation, tenant
improvement costs and/or allowances, lease buyout costs, and moving, design, and
refurbishment allowances.
(i) Xxxxx shall be solely responsible for the payment of all amounts
subject to redemption under gift certificates issued by any Owner LLC, or any
predecessor-in-interest thereof, prior to and still outstanding as of the
Closing Date and if all such amounts are not paid or caused to be paid by Xxxxx
prior to the Closing, Xxxxx shall and hereby does indemnify and hold harmless
Fourmall from and against the payment of any such amounts.
(j) The provisions of this Section 21 shall survive the Closing.
22. Indemnification.
---------------
(a) Indemnification by Xxxxx. From and after the Closing, Xxxxx hereby
------------------------
agrees to defend, indemnify and hold Fourmall, its Affiliates, successors,
assigns, shareholders, members, officers, directors, nominees, designees,
employees, agents, managers, advisors, trustees, fiduciaries, and investment
advisers and any owner of any legal or beneficial interests in Fourmall harmless
from and against, and reimburse Fourmall for, any and all Damages which they may
sustain at any time by reason of (a) the breach or inaccuracy of or failure to
comply with, or the existence of any facts resulting in the inaccuracy of, any
of the warranties, representations, conditions, covenants or agreements of Xxxxx
Parties contained in this Agreement or in any agreement or document delivered
pursuant thereto or in connection therewith, or arising out of the consummation
of the transactions contemplated under this Agreement, (b) any Liabilities or
Actions under any Environmental Laws relating to any event, action or failure to
act which occurred prior to the Closing Date, including, but not limited to, any
preexisting conditions or odors at or emanating from the Property, and any
Damages resulting therefrom which may arise after the Closing Date, (c) any
Taxes accrued or incurred on or prior to the Closing Date or relating to the
business, operations or assets of the LLC or any
-46-
Xxxxx Party for periods through and including the Closing Date, (d) the
operations of the Property, the Owner LLCs or the Holding LLCs prior to the
Closing Date, including any services rendered, actions taken or misapplication
of security deposits or (e) any Liabilities of the LLC, the Owner LLCs, the
Holding LLCs or any of their Affiliates, any of their predecessors-in-interest,
any of the prior owners of the Property, or their beneficial owners, arising or
accruing prior to the date hereof (other than the Mortgages), including without
limitation, transfer and recordation taxes, Employment Liabilities, deed and
stamp taxes and other similar taxes.
(b) Indemnification by Fourmall. From and after the Closing, Fourmall
---------------------------
shall indemnify and hold Xxxxx harmless from and against, and reimburse Xxxxx
for, any and all Damages which Xxxxx may sustain at any time by reason of the
breach or inaccuracy of or failure to comply with any warranties,
representations, conditions, covenants or agreements of Fourmall contained in
this Agreement or in any agreement, certificate or document delivered pursuant
to or in connection with this Agreement.
(c) Procedures for Indemnification. In the event that any claim is
------------------------------
asserted against any party hereto, or any party hereto is made a party defendant
in any action or proceeding, and such claim, action or proceeding involves a
matter which is the subject of this indemnification, then such party (an
"Indemnified Party") shall give written notice to the other party hereto (the
"Indemnifying Party") of such claim, action or proceeding, and such Indemnifying
Party shall have the right to join in the defense of said claim, action or
proceeding at such Indemnifying Party's own cost and expense and, if the
Indemnifying Party agrees in writing to be bound by and to promptly pay the full
amount of any final judgment from which no further appeal may be taken, then at
the option of the Indemnifying Party, such Indemnifying Party may take over the
defense of such claim, action or proceeding, except that, in such case, the
Indemnified Party shall have the right to join in the defense of said claim,
action or proceeding at its own cost and expense.
(d) The provisions of this Section 22 shall survive the Closing.
23. Survival of Representations. The parties hereto agree that all
---------------------------
representations, warranties and indemnifications under Section 22(a)(i) and
Section 22(b) of this Agreement, contained herein, in the Xxxxx Closing
Certificate or in any instrument or other document delivered pursuant to this
Agreement or in connection with the transactions contemplated hereby shall
survive the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby and any investigation or audit made by any
party hereto for a period of two (2) years from the Closing Date, within which
time written notice of any claim must be given, in which event, any claim
asserted prior to the expiration of such two (2) year period shall survive the
expiration of such two (2) year period.
24. Notices. All demands, requests or other communications (collectively,
-------
"notices") required to be given or which may be given hereunder shall be in
writing and shall be sent by (a) certified or registered mail, return receipt
requested, postage prepaid, or (b) national prepaid overnight delivery service,
or (c) telecopy or other facsimile transmissions (followed with hard
-47-
copy sent by national prepaid overnight delivery service), or (d) personal
delivery with receipt acknowledged in writing, directed to:
Xxxxx: The Xxxxx Company of Nevada, Inc.
c/o 00000 Xxxxxx Xxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Fax Number: (000) 000-0000
With a copy to: The Xxxxx Company
00000 Xxxxxx Xxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxxx, Esq.
Fax Number: (000) 000-0000
Fourmall: Fourmall Acquisition, LLC
c/o X.X. Xxxxxx Investment Management Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
with a copy to: New York State Teachers' Retirement System
00 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx 00000-0000
Attn: Xx. Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
with a copy to: Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
with a copy to: Xxxxxx X. Xxxxx, Esq.
Arent Fox Xxxxxxx Xxxxxxx & Xxxx PLLC
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Facsimile: (000) 000-0000
Any notice so sent by certified or registered mail shall be deemed given on the
date of receipt or refusal as indicated on the return receipt. All other
notices shall be deemed given when actually received or refused by the party to
whom the same is directed. A notice may be given either by a party or by such
party's attorney. Xxxxx and Fourmall may designate by not less five (5)
business days' notice given to the other in accordance with the terms of this
Section, additional or substituted parties to whom notices should be sent
hereunder.
-48-
25. Amendments. This Agreement may not be modified or terminated orally
----------
or in any manner other than by an agreement in writing signed by all the
parties hereto or their respective successors in interest.
26. Governing Law; Construction. This Agreement (a) shall be governed by
---------------------------
and construed in accordance with the laws of the State of New York, without
giving effect to principles of conflicts of law and (b) shall be given a fair
and reasonable construction in accordance with the intentions of the parties
hereto and without regard to, or aid of, any rules of construction requiring
construction against any party drafting this Agreement. Each party hereto
acknowledges that it has participated in the drafting of this Agreement, and any
applicable rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not be applied in connection with the
construction or interpretation hereof. Each party has been represented by
independent counsel in connection with this Agreement. For purposes of
construction of this Agreement, provisions which are deleted or crossed out
shall be treated as if never included herein.
27. Partial Invalidity. If any provision of this Agreement is held to be
------------------
invalid or unenforceable as against any person or under certain circumstances,
the remainder of this Agreement and the applicability of such provision to other
persons or circumstances shall not be affected thereby. Each provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
28. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall constitute an original, but all of which,
taken together, shall constitute but one and the same instrument. This
Agreement may be executed by facsimile which shall be deemed an original for all
purposes. In the event this Agreement is executed by the exchange of facsimile
copies, the parties agree to exchange ink-signed counterparts promptly after the
execution and delivery of this Agreement.
29. No Third Party Beneficiaries. The warranties, representations, agreements
----------------------------
and undertakings contained herein shall not be deemed to have been made for the
benefit of any person or entity other than the parties hereto.
30. Waiver. No failure or delay of either party in the exercise of any
------
right given to such party hereunder or the waiver by any party of any condition
hereunder for its benefit (unless the time specified herein for exercise of such
right, or satisfaction of such condition, has expired) shall constitute a waiver
of any other or further right nor shall any single or partial exercise of any
right preclude other or further exercise thereof or any other right. The waiver
of any breach hereunder shall not be deemed to be waiver of any other or any
subsequent breach hereof.
31. Assignment. Neither Fourmall nor Xxxxx Parties may assign this Agreement
----------
or any of their rights hereunder, and any purported unpermitted assignment shall
be null and void. Notwithstanding the foregoing, Fourmall may assign all or a
portion of this Agreement to (i) Xxxxxx Guaranty Trust Company of New York or
any Affiliate thereof (ii) any client advised by X.X. Xxxxxx Investment
Management Inc. and/or (iii) NYSTRS or any Affiliate thereof and after the
Closing Fourmall may assign its rights hereunder to any Person.
-49-
32. Binding Effect. This Agreement is binding upon, and shall inure to the
--------------
benefit of, the parties and each of their respective successors and permitted
assigns, if any.
33. Entire Agreement. This is the entire agreement between the parties and
----------------
there are no other terms, obligations, covenants, representations, statements or
conditions, oral or otherwise, of any kind whatsoever. Any agreement hereafter
made shall be ineffective to change, modify, discharge or effect an abandonment
of this Agreement in whole or in part unless such agreement is in writing and
signed by the party against whom enforcement of the change, modification,
discharge or abandonment is sought.
34. Further Assurances. Both prior to and after the Closing Date, Fourmall
------------------
and Xxxxx Parties shall execute and deliver each to the other such documents and
instruments and take such further actions as may be reasonably necessary or
required to consummate the transactions contemplated by this Agreement. The
provisions of this Section 34 shall survive the Closing.
35. Paragraph Headings. The headings of the various sections of this
------------------
Agreement have been inserted only for the purpose of convenience and are not
part of this Agreement and shall not be deemed in any manner to modify, expand,
explain or restrict any of the provisions of this Agreement.
-50-
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the
day and year first above written.
Xxxxx:
THE XXXXX COMPANY OF NEVADA, INC.,
a Nevada corporation
By:
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
XXXXX-XXXXXXXXXXX COMMONS, LLC, a Maryland limited
liability company
By:
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
XXXXX-XXXX XXXXXXX HOLDING, LLC, a Maryland limited
liability company
By:
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
XXXXX-XXXXXX TOWN CENTER, LLC, a Maryland limited
liability company
By:
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
BRIDGEWATER COMMONS MALL, LLC, a Maryland limited
liability company
By:
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
XXXXX-FASHION PLACE, LLC, a Maryland limited liability
company
By:
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
XXXXX-XXXX XXXXXXX, LLC, a Maryland limited liability
company
By:
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
TOWSON TC, LLC, a Maryland limited liability company
By:
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
HRD PROPERTIES, INC., a Maryland corporation
By:
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
Fourmall:
FOURMALL ACQUISITION, LLC, a Delaware limited liability
company
By: Fourmall Member, LLC, a Delaware limited liability
company
By: Xxxxxx Guaranty Trust Xxxxxx of New York, as
Trustee under Declaration of Trust dated
December 9, 1960, as amended, of its
Commingled Pension Trust Fund (X.X. Xxxxxx
Strategic Property Fund)
By:
----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
By: New York State Teachers' Retirement System, a
public pension system created and existing
pursuant to Article 11 of the Education Law of the
State of New York
By:
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Associate Real Estate Officer
