EXHIBIT 10.1
AGREEMENT OF PURCHASE AND SALE
OF PARTNERSHIP INTERESTS
IN
EASTPOINT PARTNERS, L.P.,
dated as of
July 31, 1997,
among
SHOPCO ADVISORY CORP.
EASTPOINT MALL LIMITED PARTNERSHIP
and
EASTERN AVENUE INC.
TABLE OF CONTENTS*
Page
Article I Definitions 1
Article II Purchase and Sale 7
Article III Closing 9
Article IV Due Diligence Period and Second Notice Date 13
Article V Representations and Warranties of Each Seller 19
Article VI Representations and Warranties of Buyer 24
Article VII Covenants of Buyer and Sellers 26
Article VIII Conditions to Closing 36
Article IX Survival; Indemnification 40
Article X Termination, Defaults and Remedies 42
Article XI Post-Closing Covenants and Adjustments 45
Article XII Miscellaneous 47
Schedules
Schedule 5.04 Government Authorization; Consents
Schedule 5.06 Litigation
Schedule 5.11 Liabilities and Obligations
Schedule 5.14 Outstanding Commitments
Exhibits
Exhibit A Description of Mall
Exhibit B Form of Escrow Agreement
Exhibit C Form of Assignment and Assumption of Owner
Partnership Interest
Exhibit D Substance of Opinion of Sellers' Counsel
Exhibit E Substance of Opinion of Buyer's Counsel
Exhibit F Form of Release under Management Agreement
Exhibit G Form of Release by Buyer, SFN and Owner
Partnership
Exhibit H Permitted Encumbrances
Exhibit I Form of Affidavit and Indemnity of Sellers
Exhibit J Amendment to Eastpoint Partnership Agreement
* The Table of Contents is not a part of this Agreement.
AGREEMENT OF PURCHASE AND SALE
This Agreement of Purchase and Sale (this "Agreement"),
dated as of July 31, 1997, among Shopco Advisory Corp., a New
York corporation (together with its permitted successors and
assigns, the "Buyer"), and Eastpoint Mall Limited Partnership, a
Delaware limited partnership ("Eastpoint"), and Eastern Avenue
Inc., a Delaware corporation ("Eastern"; Eastpoint and Eastern
being sometimes referred to herein individually as a "Seller" and
collectively as the "Sellers").
W I T N E S S E T H:
WHEREAS, Eastpoint is the managing general partner and
Eastern is a general partner of Eastpoint Partners, L.P., a New
York limited partnership (the "Owner Partnership"), which owns
the entire fee interest in that certain parcel of improved real
property known as Eastpoint Mall located in Baltimore County,
Maryland (the foregoing property, as more particularly described
in Exhibit A, and all improvements thereon owned by the Owner
Partnership being hereinafter referred to as the "Mall"); and
WHEREAS, Sellers are the owners of an aggregate of 91
percent of the partnership interests in the Owner Partnership
(such Owner Partnership interests owned by Sellers being
hereinafter referred to individually as an "Interest" and
collectively as the "Interests"); and
WHEREAS, Buyer desires to purchase from Sellers, and Sellers
desire to sell to Buyer, the Interests, upon the terms and
subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained in this Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties to this Agreement, intending
to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.01 Definitions. The following terms, as used in this
Agreement, have the following meanings:
"Acceptance Notice" shall have the meaning set forth in
Section 4.03(a).
"Additional Rents" shall have the meaning set forth in
Section 11.02(a).
"Affiliate" means, with respect to any Person, any Person
directly or indirectly controlling, controlled by, or under
common control with such other Person (other than any lender to
such Person in its capacity as such).
"Agreement" means this Agreement of Purchase and Sale.
"Alternative Proposal" shall have the meaning set forth in
Section 7.06(a).
"Anchor Tenant" means each of X.X. Xxxxxx, Inc.;
Schottenstein Stores Corporation (doing business as Value City);
Sears, Roebuck, and Co.; and Xxxx Department Stores, Inc.
"Balance Sheets" shall have the meaning set forth in Section
5.10.
"Basic Rents" shall have the meaning set forth in Section
11.02(a).
"Business Day" means a day that is not a Saturday, Sunday or
other day on which banking institutions in the State of New York
are authorized or required to be closed.
"Buyer" shall have the meaning set forth in the introductory
paragraph to this Agreement.
"Closing" shall have the meaning set forth in Section 3.01.
"Closing Date" means the date as of which the closing of the
purchase and sale of the Interests occurs, as set forth in
Section 3.01.
"Closing Deposit" means Four Hundred Thousand and no/100
Dollars ($400,000) payable in cash, to be delivered by Buyer
pursuant to Section 2.02(a)(ii) and held in escrow in accordance
with Article II.
"Commitment(s)" shall have the meaning set forth in Section
4.01(a).
"Commitment Notice" shall have the meaning set forth in
Section 4.02(b).
"Contracts" shall have the meaning set forth in Section
5.14.
"Conveyance Tax" shall have the meaning set forth in Section
9.05.
"Defaulting Party" shall have the meaning set forth in
Section 10.02.
"Due Diligence Period" means the period beginning on the
date of this Agreement and expiring at 7:00 p.m. on July 31,
1997, unless such period is extended by mutual agreement of Buyer
and Sellers.
"Eastern" shall have the meaning set forth in the
introductory paragraph to this Agreement.
"Eastpoint" shall have the meaning set forth in the
introductory paragraph to this Agreement.
"Eastpoint Limited Partners" means the limited partners of
Eastpoint.
"Eastpoint Partnership Agreement" means that certain
Restated Agreement and Certificate of Limited Partnership of
Eastpoint, dated as of June 25, 1985, as amended in accordance
with Exhibit J to this Agreement.
"Eastpoint Special Meeting" shall have the meaning set forth
in Section 7.07(a).
"Environmental Problem" means any discharge, spillage,
seepage or uncontrolled loss of any Hazardous Substances
occurring after July 15, 1997 (the date of the environmental
report obtained by Buyer's mortgage lender), and not caused by
any act or omission (where such party has a duty to act) of
Buyer, SFN or the Manager or any party within the control of
Buyer, SFN or the Manager, that can or does subject the owner of
the fee interest in the Mall to any environmental enforcement
action by a Governmental Authority or any fines or penalties
imposed by a Governmental Authority or any liability to one or
more third parties, including, without limitation, employees.
"Escrow Agent" means Chicago Title Insurance Company, in its
capacity as escrow agent under the Escrow Agreement.
"Escrow Agreement" means the Escrow Agreement among the
Escrow Agent, Buyer and Sellers in the form of Exhibit B hereto.
"Estoppel Certificate" shall have the meaning set forth in
Section 7.05.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Existing Deed of Trust" means that certain Amended and
Restated Deed of Trust and Security Agreement between the Owner
Partnership and the Existing Lender, dated December 1, 1993, in
the outstanding principal amount of $51,000,000.
"Existing Lender" means CBA Conduit, Inc.
"Existing Loan" means that certain indebtedness in the
outstanding principal amount of $51,000,000, evidenced by that
certain Amended and Restated Promissory Note, dated December 1,
1993, by and among the Owner Partnership and the Existing Lender
and secured by the Existing Deed of Trust.
"Extension Date" shall have the meaning set forth in Section
4.05(c).
"Final Adjustment Date" shall have the meaning set forth in
Section 11.02(f).
"Financial Statements" shall have the meaning set forth in
Section 5.10.
"Governmental Authority" means any government, court,
regulatory or administrative agency or commission or other
governmental authority, agency, official or instrumentality,
including any state, province, city, locality or other political
subdivision thereof.
"Hazardous Substances" means flammables, explosives,
radioactive materials, asbestos, polychlorinated biphenyls,
chemicals known to cause cancer or reproductive toxicity,
pollutants, contaminants, hazardous wastes, toxic substances,
petroleum and petroleum products, and substances declared to be
hazardous, explosive, flammable, infectious, radioactive,
carcinogenic, mutagenic or toxic under any law or regulation now
or hereafter enacted or promulgated by any Governmental
Authority.
"Indemnified Party" shall have the meaning set forth in
Section 9.04.
"Indemnifying Party" shall have the meaning set forth in
Section 9.04.
"Initial Deposit" means One Hundred Thousand and no/100
Dollars ($100,000), to be paid by Buyer upon execution of this
Agreement and held in escrow pursuant to Article II.
"Interest" or "Interests" shall have the meaning set forth
in the recitals to this Agreement.
"Interest Encumbrance" means the restrictions on the sale,
assignment or other disposition of all or part of an Interest
(including any consents or approvals of transfers) required by
Section X of the Owner Partnership Agreement.
"Leasing Costs" means any payments made by the Owner
Partnership and/or rent concessions granted by the Owner
Partnership pursuant to leases signed on or after June 1, 1997,
but prior to the Closing Date, for (i) leasehold improvements
and/or "free rent" for tenants at the Mall and/or (ii) brokerage
commissions in connection with leases at the Mall.
"Legal Counsel" shall have the meaning set forth in Section
7.06(b).
"Lender Failure" shall have the meaning set forth in Section
4.02(c).
"Lender Failure Notice" shall have the meaning set forth in
Section 4.02(c).
"Lender Objection" shall have the meaning set forth in
Section 4.02(c).
"Lender Objection Notice" shall have the meaning set forth
in Section 4.02(c).
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in
respect of such asset.
"Majority-in-Interest" means, as at any time, those
Eastpoint Limited Partners having Percentage Interests in excess
of 50 percent of the aggregate Percentage Interests of all the
Eastpoint Limited Partners.
"Mall" shall have the meaning set forth in the recitals to
this Agreement.
"Management Agreement" means that certain Real Estate
Management Agreement, dated as of March 24, 1993, between the
Owner Partnership and Manager.
"Manager" means Shopco Management Corp., a New York
corporation, which is an Affiliate of Buyer and the managing and
leasing agent for the Mall.
"Material Concern" means a concern of Buyer relating to the
Owner Partnership or the Mall arising out of Buyer's review of
title and survey information, leases, as-built plans and
specifications, engineering, soil and environmental reports,
service contracts, books, financial and accounting records and
other documents and materials pertaining to or affecting the
Owner Partnership or the Mall, and the consequence of which
could be materially adverse to the value, operations or financial
or physical condition of the Mall; provided, however, that Buyer
and Sellers acknowledge that Manager has been managing the Mall
on behalf of the Owner Partnership or its predecessors since
November 1985, and therefore, Buyer acknowledges and agrees that,
notwithstanding the foregoing, a Material Concern shall not
include, and in no event will Buyer object to, any matters
relating to the Owner Partnership or the Mall of which Manager is
aware or reasonably should be aware on the date of this
Agreement.
"1996 Financial Statements" shall have the meaning set forth
in Section 5.10.
"Notice of Material Concern" shall have the meaning set
forth in Section 4.02(a).
"Owner Partnership" shall have the meaning set forth in the
recitals to this Agreement.
"Owner Partnership Agreement" means that certain Amended and
Restated Agreement of Limited Partnership of the Owner
Partnership, dated as of November 29, 1985.
"Past Due Rent" shall have the meaning set forth in Section
11.02(d).
"Percentage Interest" means, with respect to each Eastpoint
Limited Partner, a percentage equal to 100 multiplied by a
fraction, the numerator of which shall be the number of Units
owned by such Eastpoint Limited Partner and the denominator of
which shall be 4,575.
"Percentage Rents" shall have the meaning set forth in
Section 11.02(b).
"Person" means an individual, a corporation, a partnership,
a limited liability company, an association, a trust or other
entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Proxy Statement" shall have the meaning set forth in
Section 7.07(c).
"Purchase Price" means the aggregate purchase price for the
Interests as set forth in Section 2.02(a).
"Repair and Replacement Costs" means any obligations
incurred by the Owner Partnership between the date of this
Agreement and the Closing Date for repairs or replacements at the
Mall to the extent such repairs or replacements should be
capitalized under generally accepted accounting principles.
"SEC" means the United States Securities and Exchange
Commission.
"Second Notice" shall have the meaning set forth in Section
4.05(a).
"Second Notice Date" means September 1, 1997, unless such
date is extended by mutual agreement of Buyer and Sellers.
"Seller" or "Sellers" shall have the meaning set forth in
the introductory paragraph of this Agreement.
"SFN" means SFN Limited Partnership, a Maryland limited
partnership, and a limited partner of the Owner Partnership.
"Subordination Agreement" shall have the meaning set forth
in Section 4.04(b).
"Tax Authority" shall have the meaning set forth in Section
9.05.
"Title Commitment" shall have the meaning set forth in
Section 7.14.
"Unit" means one unit of limited partnership interest in
Eastpoint.
ARTICLE II
PURCHASE AND SALE
2.01 Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, including, but not limited to, the
consent of the Existing Lender described in Section 8.02(k),
Sellers agree to sell to Buyer and Buyer agrees to purchase from
Sellers, the Interests as set forth below:
Percentage ownership interest in Owner
Seller Partnership represented by Seller's Interest
Eastpoint 90.9 percent
Eastern 0.1 percent
Total 91.0 percent
Upon written notice to Sellers at least 15 Business Days prior to
the Closing Date, at the Closing Shopco Advisory Corp. may assign
its rights and delegate its duties as Buyer under this Agreement
to one or more assignee(s), each of which is an Affiliate of
Shopco Advisory Corp. In such event, at the Closing such
assignee(s) shall become liable for and assume, and at and after
the Closing such assignee(s) shall perform (to the extent same
are to be performed at or after the Closing, as the case may be),
all the obligations, and shall be entitled to all of the rights,
of Buyer under this Agreement, and Shopco Advisory Corp. shall be
released from its obligations, and shall have no further rights,
under this Agreement (but Shopco Advisory Corp. shall not be
released from its obligations under any documents executed by
Shopco Advisory Corp. on or as of the Closing Date).
2.02 Purchase Price and Other Payments.
(a) Buyer shall pay to Sellers an aggregate purchase price
for the Interests (the "Purchase Price") of Twenty-Six Million
Eight Hundred Fifty-One Thousand Eight Hundred and Twenty Five
Dollars ($26,851,825), subject to the terms and conditions of
this Agreement. The Purchase Price shall be paid as follows:
(i) upon execution and delivery of this Agreement,
Buyer shall deliver the Initial Deposit to Escrow Agent;
(ii) by 5:00 p.m. on August 1, 1997, Buyer shall
deliver or cause to be delivered the Closing Deposit to
Escrow Agent; provided, that if a valid Notice of Material
Concern and/or a valid Commitment Notice and/or a valid
Lender Objection Notice and/or a valid Lender Failure Notice
has been given and the matters described therein have not
been resolved by mutual agreement of Sellers and Buyer on or
prior to the expiration of the Due Diligence Period, and
Buyer delivers, or is deemed to have delivered, to Sellers
an Acceptance Notice in accordance with Section 4.03(a),
then Buyer shall deliver or cause to be delivered the
Closing Deposit to Escrow Agent by 5:00 p.m. on the date
that is one Business Day after the date that Buyer delivers,
or is deemed to have delivered, the Acceptance Notice; and
(iii) on the Closing Date, Buyer shall deliver to
Sellers the Purchase Price plus any cash amounts due to
Sellers pursuant to Sections 3.04, 7.02(b) and 8.01(k),
less:
(w) the Initial Deposit and the Closing Deposit
previously delivered to Escrow Agent;
(x) 91 percent of any accrued but unpaid interest
and all other amounts payable under the Existing Loan
as of the Closing Date (other than principal and any
prepayment penalties or premiums);
(y) 91 percent of one-half of the mortgage tax,
if any, paid by Buyer with respect to the principal
amount of the mortgage(s) placed on the Mall by Buyer's
lenders in excess of the principal amount of the
Existing Loan; provided, that in no event shall the
Purchase Price be reduced by more than $34,125 pursuant
to this clause (y); and
(z) any credit to which Buyer is entitled
pursuant to Sections 7.02(b), 8.01(i) and 8.01(k).
(b) In addition to the Purchase Price, as a material part
of the consideration for the Interests, at the Closing, Buyer
shall pay to the Existing Lender any and all prepayment penalties
or premiums on prepaid indebtedness under the Existing Loan.
(c) In addition, at the Closing, Buyer and Sellers shall
make the adjustments described in Section 11.02, and Buyer shall
pay to Sellers, or Sellers shall pay to Buyer, as the case may
be, the net adjustment determined pursuant to Section 11.02.
2.03 Manner of Payment.
(a) The Initial Deposit and the Closing Deposit shall be
delivered in the manner and subject to the conditions set forth
in Section 2.04.
(b) Any amounts due to Sellers pursuant to Sections
2.02(a)(iii) and 2.02(c) shall be delivered by wire transfer of
immediately available funds to the account or accounts of Sellers
designated by Sellers to Buyer in writing not later than one
Business Day prior to the Closing Date. If Buyer is entitled to
the net adjustment under Section 2.02(c), Sellers or Buyer may
elect to credit the same against the balance of the Purchase
Price due at Closing.
(c) Any amount due to the Existing Lender pursuant to
Section 2.02(b) shall be paid in the manner set forth in the
Existing Deed of Trust or such other manner as is acceptable to
the Existing Lender and to Buyer, which method of payment shall
be confirmed in writing to Sellers not later than two Business
Days prior to the Closing Date.
2.04 Escrow of Deposits. The Initial Deposit shall be
delivered to Escrow Agent by wire transfer of immediately
available funds and the Closing Deposit shall be delivered to
Escrow Agent by wire transfer of immediately available funds or
by check, and if paid by check, shall be subject to collection.
If any such check is returned to Escrow Agent by reason of
insufficient funds in the payor's account, Escrow Agent shall
notify Buyer and Sellers in writing. If Buyer fails to provide
good funds within one Business Day after receipt of such notice,
such failure shall be a material default under this Agreement,
and Sellers shall have the option of terminating this Agreement
upon written notice to Buyer within ten days after the expiration
of such one Business Day period, in which event Sellers shall be
entitled to retain the Initial Deposit, together with all
interest earned thereon, if any, as its sole remedy. Escrow
Agent shall hold the Initial Deposit and the Closing Deposit in
escrow in an interest bearing account pursuant to the terms of
the Escrow Agreement (or as otherwise agreed in writing among
Sellers, Buyer and Escrow Agent). Such account shall be opened
using Eastern's federal taxpayer identification number. Any
interest earned on such account shall be delivered to the party
or parties entitled to the principal of the escrow account upon
disbursement of the principal.
2.05 Allocation of Purchase Price. Notwithstanding the
relative Interests set forth in Section 2.01, the Purchase Price,
and any other amounts payable to Sellers by or on behalf of Buyer
pursuant hereto, shall be allocated and paid to Eastern and
Eastpoint as designated in a written notice to Buyer from Eastern
and Eastpoint at least five days prior to the Closing.
2.06 Time is of the Essence. Time is of the essence of the
obligations of the parties under Article IV of this Agreement and
as further set forth in Sections 10.01(a) and 10.01(i).
ARTICLE III
CLOSING
3.01 Closing. The closing of the purchase and sale of the
Interests hereunder (the "Closing") shall take place at the
offices of Xxxx, Scholer, Fierman, Xxxx & Handler, LLP at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 a.m., on the second
Business Day following the date on which all of the conditions
set forth in Article VIII are first satisfied (the "Closing
Date"), or at such other place, time or date as shall be agreed
upon by Eastern and Buyer or at such place as designated by
Buyer's lender in the Borough of Manhattan, New York, New York.
At the Closing, the parties shall execute and deliver the
documents referred to and take the actions described in this
Article III.
3.02 Sellers' Deliveries at the Closing. At the Closing,
Sellers shall deliver or cause to be delivered the following to
Buyer:
(a) each Seller shall transfer, assign, convey and warrant
the Interest owned by such Seller to Buyer, free and clear of all
Liens, by delivery of an Assignment and Assumption of Owner
Partnership Interest in the form of Exhibit C, and shall deliver
to Buyer such instruments and other documents that represent or
constitute the Interest to be transferred at the Closing, duly
endorsed in blank for transfer;
(b) the closing certificate required by Section 8.01(c);
(c) evidence of such Seller's existence and good standing
as required by Section 8.01(d), a certificate that the Owner
Partnership exists in the State of New York and a certificate
that the Owner Partnership is registered to do business as a
foreign limited partnership in good standing in the State of
Maryland;
(d) the opinion of counsel to Sellers required by Section
8.01(e);
(e) any consent, waiver or other document required by
Sellers pursuant to Section 7.10;
(f) an update of Schedule 5.14, it being acknowledged and
agreed by Buyer that such update shall be prepared by Manager and
reviewed by Sellers;
(g) original files of the Owner Partnership pertaining to
the Owner Partnership or the Mall, to the extent such files are
not in the control of the Manager on the Closing Date; and
(h) payments due to Buyer under Section 2.02(c), unless
such amounts have been credited against the Purchase Price
pursuant to Section 2.03(b).
In addition, on the Closing Date:
(x) Sellers shall cause the Owner Partnership to pay to
Manager all fees due from the Owner Partnership to the Manager
under the Management Agreement for the period through the Closing
Date in accordance with the proration of such fees pursuant to
Section 11.02;
(y) Sellers shall deliver to Chicago Title Insurance
Company such evidence as such title company may reasonably
request with respect to the authorization, execution and delivery
by each Seller of the Assignment and Assumption of Owner
Partnership Interest referred to in Section 3.02(a); and
(z) Sellers shall deliver to Chicago Title Insurance
Company the Affidavit and Indemnity in the form of Exhibit I,
duly executed by an officer of Eastern and by Sellers, as
required.
3.03 Buyer's Deliveries at the Closing. At the Closing,
Buyer shall deliver or cause to be delivered the following to
Sellers:
(a) any amounts due to Sellers as set forth in Sections
2.02(a)(iii), 2.02(c) and 2.03;
(b) the closing certificate required by Section 8.02(c);
(c) evidence of Buyer's existence and good standing as
required by Section 8.02(d);
(d) the opinion of counsel to Buyer required by Section
8.02(e);
(e) a release of Eastern and Eastpoint from all claims,
liabilities and obligations under the Management Agreement, in
the form of Exhibit F, duly executed by Manager;
(f) evidence acceptable to Sellers that the Existing Loan
has been prepaid in full or a release of Sellers from the
Existing Lender in form reasonably acceptable to Sellers or other
evidence reasonably acceptable to Sellers that Sellers have no
continuing liabilities or obligations with respect to the
Existing Loan;
(g) any consent, waiver or other document required of Buyer
or SFN pursuant to Section 7.10, duly executed by Buyer or SFN as
the case may be;
(h) the release described in Section 3.06, duly executed by
Buyer, Buyer's permitted assignee(s) pursuant to Section 2.01,
SFN and Owner Partnership;
(i) the Assignment and Assumption of Owner Partnership
Interest with respect to each Interest in the form of Exhibit C,
duly executed by Buyer or, if this Agreement is assigned pursuant
to Section 2.01, Buyer's assignee(s);
(j) if Shopco Advisory Corp. elects to assign this
Agreement to one or more assignee(s) pursuant to Section 2.01, an
assignment and assumption agreement, in form reasonably
acceptable to Sellers, pursuant to which Shopco Advisory Corp.
assigns its rights and delegates it duties under this Agreement
to such assignee(s), duly executed by Buyer and such assignee(s);
and
(k) an instrument (which may be an amendment or an
amendment and restatement of the Owner Partnership Agreement) in
which SFN, as the limited partner of the Owner Partnership,
agrees that the Owner Partnership shall continue, notwithstanding
the assignment of the Interests, and to appoint, effective as of
the Closing Date, Shopco Advisory Corp. or its assignee(s) as the
general partner(s) of the Owner Partnership in accordance with
Section 121-801(d) of the New York Uniform Limited Partnership
Act.
3.04 Escrowed Funds under Existing Loan. Sellers shall be
entitled to receive 91 percent of any and all amounts held in
escrow by the Existing Lender under the Existing Deed of Trust or
any of the other documents evidencing or securing the Existing
Loan. Buyer and Sellers shall instruct the Existing Lender to
return 91 percent of the escrowed funds directly to an account
designated by Sellers on or prior to the Closing Date and nine
percent of the escrowed funds directly to an account designated
by SFN on or prior to the Closing Date. In the event that any
party shall receive any funds payable to another party pursuant
to this Section 3.04, such party shall hold such funds in trust
for such other party and shall promptly transfer all such funds
to such other party, in the form received, with any necessary
endorsement. At Buyer's option, the funds payable to Sellers
pursuant to this Section 3.04 shall be added to the Purchase
Price and paid to Sellers by Buyer at the Closing.
3.05 Additional Deliveries. The parties shall deliver such
further documents, resolutions, certificates and instruments as
any party or its counsel reasonably requests to facilitate the
consummation of the transactions contemplated by this Agreement.
3.06 Sellers Cease to be Partners of Owner Partnership.
Effective at the Closing, Sellers shall cease to be partners of
the Owner Partnership. As a material part of the consideration
for the Interests, at the Closing Buyer shall, and shall cause
SFN and the Owner Partnership to, execute and deliver to Sellers
a release of each Seller in the form of Exhibit G, which release
shall be effective immediately after the Closing.
3.07 Escrow Arrangements. To facilitate the mortgage
financing which Buyer plans to obtain in connection with the
purchase of the Interests pursuant to this Agreement, Sellers
agree to cooperate to effect the Closing (including, without
limitation, the delivery of the Assignment and Assumption of
Owner Partnership Interest, duly executed by Buyer (or its
assignee) and the respective Seller and the delivery of the
Purchase Price) pursuant to an escrow arrangement mutually
acceptable to Buyer and Sellers.
ARTICLE IV
DUE DILIGENCE PERIOD
AND
SECOND NOTICE DATE
4.01 Buyer's Due Diligence. From the date of this Agreement
to the earlier to occur of (i) any termination of this Agreement
or (ii) the expiration of the Due Diligence Period:
(a) Buyer covenants and agrees to use its commercially
reasonable efforts in good faith to obtain one or more
commitment(s) for a mortgage loan or loans to refinance the
Existing Loan and pay all or any portion of the Purchase Price
(other than the Initial Deposit) and/or an unsecured loan for
payment of the Closing Deposit and additional funds for which
Buyer, in its sole discretion, determines financing is required
(such commitment(s) being hereinafter referred to as the
"Commitment(s)"); and
(b) Buyer may inspect the Mall during normal business
hours, review the Owner Partnership's books, records and general
correspondence relating to the Mall or to the Owner Partnership
(which review Eastern shall facilitate) and any other information
made available to Buyer by Eastern; provided, however, that in
carrying out any such inspection of the Mall, Buyer (a) shall
obtain Eastern's prior written consent to perform physically
invasive testing at the Mall (which consent shall not be
unreasonably withheld or delayed) and (b) shall not unreasonably
interfere with the rights of any tenant or other occupant of the
Mall in violation of the lease or other agreement by which such
tenant or occupant occupies space in the Mall. Buyer shall
restore or shall cause the Mall to be restored to the condition
existing prior to any tests or studies conducted or caused to be
conducted by Buyer if any damage or change in condition of the
Mall results from such tests or studies. Buyer agrees to
indemnify the Owner Partnership, Eastern, Eastpoint and their
respective partners, officers, directors, agents, representatives
and employees against, and hold them harmless from, any claim,
damage, liability or expense (including, but not limited to,
reasonable attorneys' fees and disbursements) arising out of any
inspection of the Mall conducted by Buyer, except to the extent
any such claim, damage, liability or expense arises out of the
gross negligence or willful misconduct of either Seller. Buyer's
obligation to restore the Mall and the indemnity in the preceding
sentence shall survive the termination of this Agreement,
notwithstanding anything else to the contrary contained in this
Agreement. In exercising Buyer's diligence, Buyer shall obtain a
title insurance commitment for the Mall from a nationally
recognized title insurance company. Sellers agree to pay for the
cost of obtaining such title insurance commitment, but Buyer
shall be solely responsible for payment of any title insurance
premiums. In addition, Sellers agree to pay for the cost of
obtaining a Phase I environmental site assessment from an
environmental testing firm selected by Buyer and reasonably
acceptable to Sellers. The Owner Partnership and Eastern shall
be entitled to have a representative present during all
inspections and testing of the Mall.
4.02 Notice of Material Concern, Commitment Notice, Lender
Objection Notice or Lender Failure Notice.
(a) If Buyer's diligence reveals any matter which
constitutes a Material Concern, Buyer shall notify Sellers in
writing on the earlier of the third Business Day after discovery
of each such matter or the last day of the Due Diligence Period
(such notice being hereinafter referred to as a "Notice of
Material Concern"). If Buyer does not obtain a current or
updated survey of the Mall during the Due Diligence Period, then
in no event shall any title company's failure to delete survey-
related exceptions be deemed to be a Material Concern. Buyer
agrees to provide Sellers promptly upon request with copies of
all reports, studies, memoranda and other information received by
Buyer from parties other than Sellers or the Owner Partnership
relating to the matter of Material Concern.
(b) If Buyer, having used commercially reasonable efforts
in good faith to obtain the Commitment(s), is, or determines in
good faith that it will be, unable to obtain any one or more of
such Commitment(s) on or prior to the expiration of the Due
Diligence Period, Buyer shall notify Sellers in writing on the
earlier of the third Business Day after such determination or the
last day of the Due Diligence Period (such notice being
hereinafter referred to as a "Commitment Notice").
(c) If any lender which has agreed to provide a Commitment
to Buyer (i) objects to any matter with respect to the Owner
Partnership or the Mall (whether or not such objection is
material) (a "Lender Objection") on or prior to the expiration of
the Due Diligence Period, or (ii) fails to complete its due
diligence review on or prior to the expiration of the Due
Diligence Period (a "Lender Failure"), Buyer shall notify Sellers
in writing in the case of a Lender Objection, on the earlier of
the third Business Day after Buyer becomes aware of such Lender
Objection or on the last day of the Due Diligence Period (such
notice being hereinafter referred to as a "Lender Objection
Notice"), or in the case of a Lender Failure, on the last day of
the Due Diligence Period (such notice being hereinafter referred
to as a "Lender Failure Notice").
4.3 Procedures at Expiration of Due Diligence Period.
(a) If Sellers receive a valid Notice of Material Concern
and/or a valid Commitment Notice and/or a valid Lender Objection
Notice and/or a valid Lender Failure Notice prior to the
expiration of the Due Diligence Period, and Sellers and Buyer are
unable to agree on a resolution of such matter(s) on or before
the expiration of the Due Diligence Period, then Buyer shall have
the option, by written notice given to the Sellers on or before
7:00 p.m. on the date that is three Business Days after the
expiration of the Due Diligence Period, to either (i) terminate
this Agreement, in which event Buyer shall be entitled to the
return of the Initial Deposit, together with all interest earned
thereon, if any, and neither party shall have any further
obligation or recourse to the other under this Agreement, or (ii)
accept all Material Concern(s) described in any Notice of
Material Concern and waive Buyer's right to terminate this
Agreement due to the failure to obtain one or more Commitment(s)
as described in any Commitment Notice and all Lender Objection(s)
described in any Lender Objection Notice and any Lender Failure
described in any Lender Failure Notice, in each case without any
reduction of the Purchase Price or any credit or allowance
against the same (such notice containing such acceptance and
waivers being referred to herein as an "Acceptance Notice");
provided, that if Sellers do not receive either the termination
notice described in clause (i) or the Acceptance Notice by 7:00
p.m. on the date that is three Business Days after the expiration
of the Due Diligence Period, Buyer shall be deemed to have
delivered an Acceptance Notice to Sellers on such date.
(b) If prior to 7:00 p.m. on the date the Due Diligence
Period expires, either (i) no valid Notice of Material Concern,
no valid Commitment Notice, no valid Lender Objection Notice and
no valid Lender Failure Notice have been given, or a valid Notice
of Material Concern and/or a valid Commitment Notice and/or valid
Lender Objection Notice and/or valid Lender Failure Notice has
been given and the matters described therein have been resolved
by mutual agreement of Sellers and Buyer, or (ii) a valid Notice
of Material Concern and/or a valid Commitment Notice and/or a
valid Lender Objection Notice and/or a valid Lender Failure
Notice has been given and the matters described therein have not
been resolved by mutual agreement of Sellers and Buyer, but prior
to 7:00 p.m. on the date which is three Business Days after the
expiration of the Due Diligence Period, Buyer shall have given,
or is deemed to have given, Sellers an Acceptance Notice pursuant
to Section 4.03(a), then, in the case of clause (i) above, on the
first Business Day after the expiration of the Due Diligence
Period, and in the case of clause (ii) above, on the first
Business Day after the date that Buyer has given or is deemed to
have given such Acceptance Notice:
(1) Buyer shall deliver to Escrow Agent the Closing
Deposit in accordance with Sections 2.02(a)(ii) and 2.04;
(2) the Initial Deposit and the Closing Deposit shall
become non-refundable, except in the following cases (in
each such case, Escrow Agent shall promptly return the
Initial Deposit and the Closing Deposit, together with all
interest thereon, if any, to Buyer pursuant to the terms of
the Escrow Agreement):
(A) in the event Buyer terminates this Agreement
pursuant to Section 4.03(a)(i) or 4.05(a)(x) or Seller
terminates this Agreement pursuant to Section 4.05(c)
or 4.05(d);
(B) in the event of a termination by Sellers
pursuant to Section 7.06, Sections 7.07(b) or (f) or
Section 10.01(d);
(C) in the event of the failure of a condition
set forth in Section 8.01, which condition is not
waived by Buyer, or the failure of a condition set
forth in Section 8.02(g), which condition is not waived
by Sellers, or the failure of the condition set forth
in Section 8.02(h) or Section 8.02(k) if, in the case
of Section 8.02(k), Sellers determine the consent
referred to in Section 8.02(k) is necessary to avoid a
default under the Existing Loan;
(D) in the event of a termination of this
Agreement by either Seller pursuant to Section 10.01(a)
if either Seller is not ready, willing and able to
close at the time it elects to terminate;
(E) in the event of a termination of this
Agreement by Buyer pursuant to Section 10.01(a) if
Buyer is ready, willing and able to close at the time
it elects to terminate;
(F) in the event of a termination of this
Agreement pursuant to Xxxxxxxx 00.00(x), (x), (x), (x),
(x), (x), (x), (x) or (k); or
(G) in the event of a termination of this
Agreement by Buyer pursuant to Section 7.14;
provided, however, that the Initial Deposit and the
Closing Deposit shall remain nonrefundable if this
Agreement is terminated by Sellers pursuant to Section
7.07(f) or Section 10.01(d) if the condition set forth
in Section 8.01(j) arises out of any default by Buyer
under, or breach by Buyer of a representation, warranty
or covenant of, this Agreement; and provided further
that the foregoing provisions in this clause (2) are
not intended, and shall not be interpreted, to limit
Sellers' rights and remedies under Section 10.02 in the
event of any default by Buyer under, or breach by Buyer
of a representation, warranty or covenant of, this
Agreement; and
(3) Buyer's right to terminate this Agreement as a
result of a matter of Material Concern and/or Buyer's
inability to obtain one or more Commitment(s) and/or a
Lender Objection and/or a Lender Failure shall be deemed
waived. The foregoing waiver shall not limit Buyer's right
to terminate this Agreement for any other reason to the
extent Buyer is expressly granted such right under any other
provision of this Agreement.
4.04 Period Prior to the Second Notice Date.
(a) From the date of this Agreement until any termination
of this Agreement, Eastpoint, as managing general partner of the
Owner Partnership, agrees that Buyer may communicate with the
Existing Lender in connection with Buyer's contemplated
refinancing of the Existing Loan, including negotiating the
amount of any prepayment penalties or premiums and the Existing
Lender's agreement to assign its mortgage to Buyer's mortgage
lender in connection with a prepayment of the Existing Loan;
provided, that the foregoing shall not preclude Sellers from
separately discussing such refinancing, including the amount of
any prepayment penalties or premiums and/or the assignment of the
Existing Lender's mortgage to Buyer's mortgage lender in
connection with the prepayment of the Existing Loan, with the
Existing Lender. Buyer shall keep Sellers reasonably informed of
the results of its discussions with the Existing Lender. If on
or prior to August 15, 1997, the Existing Lender has not agreed
to prepayment on terms acceptable to Buyer, Buyer shall provide
Sellers written notice thereof.
(b) Promptly after the date of this Agreement, Eastern
shall direct the Manager to request from the Anchor Tenants and
from such other tenants of the Mall as Buyer's mortgage lender
shall request, the execution by such tenants of a subordination,
non-disturbance and attornment agreement in the form approved by
Buyer's mortgage lender or, solely in the case where a tenant's
lease requires such tenant to provide the landlord's lender with
a subordination agreement without receiving a non-disturbance and
attornment agreement from such lender, a subordination agreement
in the form approved by Buyer's mortgage lender (either such
agreement, a "Subordination Agreement") . Buyer shall cause the
Manager to use good faith, diligent efforts to obtain a
Subordination Agreement from such tenants of the Mall as Buyer's
mortgage lender requests, as provided in the preceding sentence;
provided, however, that nothing contained herein shall require
the Manager, Buyer or Sellers to pay money to any tenant,
commence litigation, threaten litigation or otherwise adversely
affect relations with tenants. Buyer shall cause the Manager to
promptly provide Sellers and Buyer with a copy of all
Subordination Agreements received by the Manager and to promptly
notify them of any tenant that refuses to deliver a Subordination
Agreement and the reason for such refusal, if known. Upon the
request of either Seller from time to time, Buyer shall provide,
or shall cause the Manager to provide, Sellers with a status
report listing those tenants that have provided Subordination
Agreements and those tenants that have not yet provided
Subordination Agreements.
(c) Notwithstanding anything in Sections 4.01, 4.02 or 4.03
to the contrary, Buyer shall have the right, at its sole expense,
to conduct environmental testing of the Mall through the Second
Notice Date, provided that such testing shall be subject to the
terms and conditions set forth in Section 4.01(b) (without
reference to the expiration of the Due Diligence Period).
4.05 Procedures on the Second Notice Date.
(a) If, prior to 7:00 p.m. on the Second Notice Date, (i)
the Existing Lender has not agreed to prepayment of the Existing
Loan on terms acceptable to Buyer or to assign its mortgage to
Buyer's mortgage lender in connection with such prepayment or to
deliver, upon prepayment of the Existing Loan, the release
required by Section 3.03(f), or (ii) any tenant at the Mall which
has been requested to execute a Subordination Agreement with
Buyer's mortgage lender pursuant to Section 4.04(b) has not
executed such Subordination Agreement and Buyer has not obtained
such mortgage lender's waiver of such requirement, or (iii)
Buyer's mortgage lender or the lender who funded the Closing
Deposit, in their sole discretion, object to the results of any
environmental testing under Section 4.04(c), then Buyer shall
advise Sellers by written notice given to Sellers on or before
7:00 p.m. on the Second Notice Date (such notice, the "Second
Notice"), and then Buyer shall have the option, by written notice
given to Sellers on or before 7:00 p.m. on the date that is three
Business Days after the Second Notice Date, to either (x)
terminate this Agreement, in which event Buyer shall be entitled
to the return of the Initial Deposit and the Closing Deposit,
together with all interest earned thereon, if any, and neither
party shall have any further obligation or recourse to the other
under this Agreement, or (y) waive the right to terminate this
Agreement due to such conditions; provided, that if Sellers do
not receive either the termination notice described in clause (x)
of this Section 4.05(a) or the notice described in clause (y) of
this Section 4.05(a) by 7:00 p.m. on the date is three Business
Days after the Second Notice Date, Buyer shall be deemed to have
waived its right to terminate this Agreement as a result of any
matter referred to in clauses (i), (ii) or (iii) of this Section
4.05(a).
(b) If Sellers do not receive the Second Notice by 7:00
p.m. on the Second Notice Date, then as of such time Buyer's
right to terminate this Agreement as a result of any matter
referred to in clauses (a)(i), (ii) or (iii) of this Section 4.05
shall be deemed waived.
(c) If, prior to 7:00 p.m. on the Second Notice Date, the
Existing Lender has not yet provided the consent referred to in
Section 8.02(k), then, in addition to the rights of Buyer
pursuant to Section 4.05(a), as its sole remedy for the failure
of the condition set forth in Section 8.02(k) to have been
satisfied, either Seller shall have the option, by written notice
given to Buyer on or before 7:00 p.m. on the date that is three
Business Days after the Second Notice Date, to either (x)
terminate this Agreement, in which event Buyer shall be entitled
to the return of the Initial Deposit and the Closing Deposit,
together with all interest earned thereon, if any, and neither
party shall have any further obligation or recourse to the other
under this Agreement, or (y) extend the date by which such
consent of the Existing Lender must be obtained to a Business Day
no later than September 15, 1997 (the "Extension Date");
provided, that if Buyer does not receive either the termination
notice described in clause (x) of this Section 4.05(c) or the
extension notice described in clause (y) of this Section 4.05(c)
by 7:00 p.m. on the date is three Business Days after the Second
Notice Date, Sellers shall be deemed to have extended the date by
which such consent of the Existing Lender must be obtained to
September 15, 1997. In the event Sellers provide the extension
notice described in clause (y) of this Section 4.05(c), such
notice shall extend the date by which the Existing Lender must
provide the consent referred to in Section 8.02(k) to the
Extension Date.
(d) If, prior to 7:00 p.m. on the Extension Date, the
Existing Lender has not provided the consent referred to in
Section 8.02(k), then Sellers shall so advise Buyer in writing
and Sellers may elect in such notice to Buyer to terminate this
Agreement on the Extension Date, in which event Buyer shall be
entitled to the return of the Initial Deposit and the Closing
Deposit, together with all interest earned thereon, if any, and
neither party shall have any further obligation or recourse to
the other under this Agreement.
(e) Buyer and Sellers acknowledge and agree that the lender
that funded the Closing Deposit may provide notices under this
Section 4.05 directly to Sellers pursuant to the requirements of
Section 12.01. Buyer hereby authorizes Sellers, and Sellers
hereby agree, to accept such notices from such lender under this
Section 4.05 as if given by Buyer.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF EACH SELLER
Each Seller hereby severally and not jointly represents and
warrants to Buyer as to such Seller and the Owner Partnership, as
of the date hereof, as follows; provided, however, that Sellers
shall not be liable to Buyer for representations or warranties
regarding any matters pertaining to the Mall of which Manager is
aware or reasonably should be aware on the date of this
Agreement:
5.01 Corporate Existence or Partnership Constitution.
(a) Eastern is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware.
(b) Eastpoint is a limited partnership duly formed, validly
existing and in good standing under the laws of the State of
Delaware. Eastern is the sole general partner of Eastpoint.
5.02 Valid Agreement. This Agreement has been, and all
other agreements and instruments to be executed and delivered in
connection herewith by such Seller have been or will be as of the
Closing Date, duly executed and delivered by such Seller. This
Agreement is the valid and binding agreement of such Seller, and
such other agreements and instruments are or when so executed and
delivered will be, enforceable against such Seller in accordance
with their respective terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of
creditors' rights generally and except as enforceability may be
subject to general principles of equity, whether such principles
are applied in a proceeding at law or in equity.
5.03 Authorization.
(a) The execution, delivery and performance by Eastern of
this Agreement and the consummation by Eastern of the
transactions contemplated hereby are within Eastern's corporate
powers and authority and have been duly authorized by all
necessary corporate action on the part of Eastern.
(b) The execution and delivery of this Agreement by
Eastpoint are within the powers and authority of Eastpoint and,
subject to the approval of this Agreement and the transactions
contemplated hereby by a Majority-in-Interest of the Eastpoint
Limited Partners in accordance with the Eastpoint Partnership
Agreement, the performance by Eastpoint of this Agreement and the
consummation by Eastpoint of the transactions contemplated hereby
are within the powers of Eastpoint and have been duly authorized
by all necessary action of Eastern, in its capacity as
Eastpoint's general partner, and the Eastpoint Limited Partners.
5.04 Governmental Authorization; Consents. Except as set
forth on Schedule 5.04, the execution, delivery and performance
by such Seller of this Agreement and the consummation of the
transactions contemplated hereby require no action by or in
respect of, or filing with, any Governmental Authority on or
prior to the date hereof; and no consent, approval, waiver or
other action by any Person (other than any Governmental
Authority) under any contract, agreement, indenture, lease,
instrument or other document to which such Seller is a party or
by which such Seller is bound is required for the execution,
delivery and performance by such Seller of this Agreement or for
the consummation by such Seller of the transactions contemplated
hereby, except for (a) the consents, waivers, documents and
instruments required with respect to such Seller's Interest
Encumbrance, (b) in the case of Eastpoint, the approval required
under the Eastpoint Partnership Agreement of a Majority-in-
Interest of the Eastpoint Limited Partners and (c) the consent of
the Existing Lender described in Section 8.02(k).
5.05 Non-Contravention. The execution, delivery and
performance by such Seller of this Agreement and the consummation
of the transactions contemplated hereby do not and will not (i)
subject to receipt by Sellers of the consents, waivers, documents
and interests required with respect to the Interest Encumbrances,
contravene or conflict with the Owner Partnership Agreement; in
the case of Eastern, contravene or conflict with the certificate
of incorporation or bylaws of Eastern; in the case of Eastpoint,
subject to the approval of this Agreement and the transactions
contemplated hereby by a Majority-in-Interest of the Eastpoint
Limited Partners, contravene or conflict with the Eastpoint
Partnership Agreement; (ii) contravene or conflict with or
constitute a violation of any provision of any existing law, or
material regulation, judgment, injunction, order or decree
binding upon or applicable to such Seller or the Owner
Partnership; (iii) subject to receipt by such Seller of the
consents, waivers, documents and interests required with respect
to such Seller's Interest Encumbrance and subject to receipt by
Sellers of the consent of the Existing Lender described in
Section 8.02(k), constitute a breach or default under or give
rise to any right of termination, cancellation or acceleration of
any material right or obligation of such Seller or the Owner
Partnership under the Owner Partnership Agreement or any other
material agreement, contract or other instrument binding upon
such Seller or the Owner Partnership or under any material
license, sublicense, franchise, permit or other similar
authorization held by such Seller or the Owner Partnership; or
(iv) result in the creation or imposition of any Lien on the
Interest of such Seller or on the Mall.
5.06 Litigation. Except as set forth on Schedule 5.06,
there is no action, suit, investigation or proceeding pending or,
to the best of such Seller's knowledge, threatened against or
affecting such Seller, such Seller's property, the Owner
Partnership or the Mall before any arbitrator or Governmental
Authority which in any manner involves the Interest of such
Seller or draws into question the validity of this Agreement,
such Interest or any other document to be delivered by such
Seller pursuant to this Agreement or which in any manner
challenges or seeks to prevent, enjoin, alter or materially delay
the transactions contemplated hereby or which, if adversely
determined, would materially affect the ability of such Seller to
perform its obligations under this Agreement or consummate the
transactions contemplated hereby.
5.07 Bankruptcy. No bankruptcy, insolvency, reorganization,
arrangement or similar action involving such Seller or the Owner
Partnership, whether voluntary or involuntary, is pending or
threatened, and neither such Seller nor the Owner Partnership has
any intention of filing any such action or proceeding.
5.08 Title. Such Seller has full right, title and interest
in and to the Interest listed in Section 2.01 adjacent to such
Seller's name, free and clear of any Lien other than the Interest
Encumbrances. Upon the payment and receipt by Sellers of the
Purchase Price at the Closing, and receipt by such Seller of any
necessary consent, waiver or other document requested pursuant to
Section 7.10, such Seller will transfer and deliver to Buyer
valid title to, and all of such Seller's right, title and
interest in and to, such Seller's Interest, free and clear of any
Lien. There are no outstanding subscriptions, options, warrants,
calls or other commitments or agreements to which the Owner
Partnership or such Seller is a party, or pursuant to which the
Owner Partnership or such Seller is or may be or become bound,
requiring the issuance of any additional interests in the Owner
Partnership.
5.09 Owner Partnership Organization and Structure. The
Owner Partnership is a limited partnership duly formed and
validly existing under the laws of the State of New York. Upon
the Owner Partnership's filing of the appropriate Maryland
personal property tax returns for any period for which such
returns were required to be filed prior to the Closing, either
the Owner Partnership will be, or Sellers will, at or prior to
the Closing, take such actions as are necessary to reinstitute
the Owner Partnership as, a duly registered foreign limited
partnership in good standing in the State of Maryland. The Owner
Partnership has all power and authority necessary to enable it to
own, lease or otherwise hold its properties and assets and to
carry on its business as now conducted. The Owner Partnership
has no employees.
5.10 Financial Statements. The Sellers have previously
furnished to the Buyer Eastpoint's audited consolidated financial
statements for the year ended December 31, 1996 (the "1996
Financial Statements") and Eastpoint's unaudited consolidated
financial statements as of March 31, 1997 (together with the 1996
Financial Statements, the "Financial Statements"; the balance
sheets included among the Financial Statements are collectively
referred to herein as the "Balance Sheets"). The 1996 Financial
Statements are audited, have been prepared in accordance with
generally accepted accounting principles consistently applied and
were prepared from the books and records of the Owner
Partnership, which books and records are complete and correct in
all material respects and accurately reflect all transactions of
the Owner Partnership. The Financial Statements fairly present
the financial position of the Owner Partnership as of the dates
thereof and the results of the Owner Partnership's operations for
the periods ended on the dates thereof. Since the date of the
most recent of the Balance Sheets, (a) there has been no change
in the assets, liabilities or financial condition of the Owner
Partnership from that reflected in the Balance Sheets, except for
changes in the ordinary course of business consistent with past
practice and which have not been, in the aggregate, materially
adverse, and (b) none of the business prospects, financial
condition, operations, property or affairs of the Owner
Partnership has been materially adversely affected by any
occurrence or development, individually or in the aggregate,
whether or not insured against.
5.11 Absence of Undisclosed Liabilities. Except as set
forth on Schedule 5.11 or in the Financial Statements, as of the
date of this Agreement there is no material liability or
obligation of any kind, whether accrued, absolute, contingent or
otherwise, and whether liquidated or unliquidated, of the Owner
Partnership, other than liabilities incurred in the ordinary
course of the Owner Partnership's business and other than the
Owner Partnership's liability with respect to the Maryland
personal property tax described in Section 5.17.
5.12 Assets of the Owner Partnership. Except for the Mall
and the assets of the Owner Partnership incidental to the
operation of the Mall as reflected in the Financial Statements,
and except for the revenues of the Owner Partnership held by the
Owner Partnership pending distribution to its partners, the Owner
Partnership has no assets.
5.13 Existing Loan. The Existing Lender has not declared a
default under the Existing Deed of Trust or the Existing Loan
and, subject to the consent of the Existing Lender as described
in Section 8.02(k), to the knowledge of Sellers, no condition
exists that, with notice or lapse of time or both, would
constitute a default by the Owner Partnership under the Existing
Deed of Trust or the Existing Loan. On the date of this
Agreement, the outstanding principal amount under the Existing
Loan is $51,000,000.
5.14 Outstanding Commitments. Schedule 5.14 sets forth a
list of all existing material contracts, agreements, leases,
commitments, licenses and franchises and, to the best of such
Seller's knowledge, all other contracts, agreements, leases,
commitments, licenses and franchises not terminable by the Owner
Partnership on 30 days notice without premium or penalty
(collectively, the "Contracts"), whether written or oral, to
which the Owner Partnership is party or is bound, it being
acknowledged and agreed by Buyer that such Schedule 5.14 has been
prepared by Manager and reviewed by Sellers. Sellers have
delivered or made available (or prior to the expiration of the
Due Diligence Period shall deliver or make available) to the
Buyer true, correct and complete copies of all written Contracts.
To the knowledge of such Seller, all of the Contracts are in full
force and effect, none of the Contracts has been terminated prior
to the expiration of its stated term and no notice has been given
by any party thereto of any alleged default thereunder by any
party thereto.
5.15 Eastpoint. As of the date of this Agreement, there are
4,575 Units outstanding. Eastpoint has no employees.
5.16 Agreements to Acquire Property of the Owner
Partnership. Other than this Agreement, neither the Owner
Partnership nor such Seller has entered into any agreement
whereby any person has any rights to acquire any property of the
Owner Partnership, including, without limitation, the Mall, or
any portion thereof.
5.17 Taxes. Except with respect to the filing of the
appropriate Maryland personal property tax returns for any period
for which such returns were required to be filed prior to the
Closing , and payment of the personal property taxes then due in
respect thereof, no taxes that have been assessed or claimed
against the Owner Partnership and which are currently due and
payable are unpaid, and the Owner Partnership has filed with the
appropriate federal, state and local governmental agencies all
tax and other returns and reports required to be filed by it, to
the extent due, and has paid all taxes shown thereon required to
be paid, except for such taxes as are being contested in good
faith by appropriate proceedings. Sellers agree to cause the
Owner Partnership to pay the Maryland personal property tax
described in the preceding sentence prior to the Closing Date.
Buyer shall cause Manager to advise Sellers regarding the
calculation and amount of such unpaid Maryland personal property
taxes pursuant to its obligations under the Management Agreement.
5.18 Condemnation, Public Improvements, Zoning. To such
Seller's knowledge, the Owner Partnership has received no written
notice (i) of any pending condemnation or public improvements to
the Mall or (ii) that the Mall is in violation of any present
zoning laws or regulations, other than violations which have been
remedied as of the date hereof.
5.19 Solvency. Such Seller is not insolvent on the date of
this Agreement, and such Seller will not be rendered insolvent by
any of the transactions contemplated by this Agreement. In
addition, immediately after giving effect to the consummation of
the transactions contemplated by this Agreement, (i) such Seller
will be able to pay its debts generally as they become due, (ii)
such Seller shall not have unreasonably small capital and such
Seller will have sufficient capital with which to conduct its
present and proposed business, (iii) in the case of Eastpoint,
Eastpoint will have sufficient cash and assets with which to pay
its creditors in full in connection with Eastpoint's contemplated
plan of dissolution and (iv) taking into account all pending and
threatened litigation against such Seller, final judgments
against such Seller in actions for money damages are not
reasonably anticipated to be rendered at a time when, or in
amounts such that, such Seller will be unable to satisfy any such
judgments promptly in accordance with their terms (taking into
account the maximum probable amount of such judgments in any such
actions and the earliest reasonable time at which such judgments
might be rendered) as well as all other obligations of such
Seller. The cash available to such Seller, after taking into
account all other anticipated uses of the cash of such Seller,
will be sufficient to pay all such judgments promptly in
accordance with their terms. As used in this Section 5.19, the
term "insolvent" means, for any entity, that the sum of the
present fair saleable value of its assets does not and will not
exceed its debts and other probable liabilities and the term
"debts" includes any legal liability, whether matured or
unmatured, liquidated or unliquidated, absolute, fixed or
contingent, disputed or undisputed or secured or unsecured.
5.20 Proxy Statement. The Proxy Statement and each
amendment or supplement thereto (except for information provided
by Buyer expressly for inclusion therein, as to which such Seller
makes no representation or warranty) at the time it is filed with
the SEC, at the time of mailing thereof and at the time of the
Eastpoint Special Meeting, and all information provided by
Sellers to the SEC in response to comments or requests for
supplemental information from the staff of the SEC and any other
report filed by Eastpoint with the SEC pursuant to the Exchange
Act, which other report incorporates information provided by
Buyer or relates to or describes the transaction contemplated
hereby (in each case, except for information provided by Buyer
expressly for inclusion therein, as to which such Seller makes no
representation or warranty), will not include any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
5.21 Disclaimer of Warranties; Limitation of Liability.
Notwithstanding anything to the contrary contained in this
Agreement or any document related hereto, except as otherwise
specifically provided in this Section 5.21 and elsewhere in this
Agreement to the contrary, Buyer and Sellers acknowledge that
Manager has acted as the manager of the Mall since November 1985,
and as a result is familiar with the condition and operations of
the Mall; and that, except as otherwise expressly provided
herein, Sellers make no representations or warranties, express or
implied, as to fitness, habitability, use, merchantability,
quality of construction, workmanship, status of leases, rental
income, expenses or otherwise with respect to the condition or
operations of the Mall, it being understood and agreed by Buyer
that, except as expressly provided in this Agreement, the
condition and operations of the Mall shall be "AS IS, WHERE IS"
on the Closing Date. Buyer represents and warrants to Sellers
that Buyer is entering into this Agreement and shall purchase the
Interests (subject to the terms hereof) solely on the basis of
Buyer's own independent investigations without relying on any
statement, information or projection made or furnished by
Sellers, their partners, officers, directors, agents,
representatives, employees or contractors, except for the
representations and warranties expressly made herein by Sellers,
and in no event shall any Seller be liable to Buyer for any
consequential, indirect or punitive damages related thereto.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Sellers, as of the
date hereof, that:
6.01 Constitution. Buyer is a corporation duly
incorporated, validly existing and in good standing under the
laws of the State of New York.
6.02 Valid Agreement. This Agreement has been, and all
other agreements and instruments to be executed and delivered in
connection herewith by Buyer have been or will be as of the
Closing Date, duly executed and delivered by Buyer. This
Agreement is the valid and binding agreement of Buyer, and such
other agreements and instruments are or when so executed and
delivered will be, enforceable against Buyer in accordance with
their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights
generally and except as enforceability may be subject to general
principles of equity, whether such principles are applied in a
proceeding at law or in equity.
6.03 Authorization. The execution, delivery and performance
of this Agreement by Buyer and the consummation by Buyer of the
transactions contemplated hereby are within the powers and
authority of Buyer and have been duly authorized by all necessary
corporate action of Buyer.
6.04 Governmental Authorization; Consents. The execution,
delivery and performance by Buyer of this Agreement and the
consummation of the transactions contemplated hereby require no
action by or in respect of, or filing with, any Governmental
Authority on or prior to the date hereof. No consent, approval,
waiver or other action by any Person (other than any Governmental
Authority) under any contract, agreement, indenture, lease,
instrument or other document to which Buyer is a party or by
which Buyer is bound is required for the execution, delivery and
performance by Buyer of this Agreement or for the consummation by
Buyer of the transactions contemplated hereby.
6.05 Non-Contravention. The execution, delivery and
performance by Buyer of this Agreement and the consummation of
the transactions contemplated hereby do not and will not (i)
conflict with the certificate of incorporation or by-laws of
Buyer; (ii) contravene or conflict with or constitute a violation
of any provision of any existing law, or material regulation,
judgment, injunction, order or decree binding upon or applicable
to Buyer; (iii) constitute a breach or default under or give rise
to any right of termination, cancellation or acceleration of any
material right or obligation of Buyer under any material
agreement, contract or other instrument binding upon Buyer or
under any material license, sublicense, franchise, permit or
other similar authorization held by Buyer; or (iv) result in the
creation or imposition of any Lien on any material asset of
Buyer.
6.06 Litigation. There is no action, suit, investigation or
proceeding pending or threatened against or affecting Buyer or
Buyer's property before any arbitrator or Governmental Authority
which in any manner draws into question the validity of this
Agreement or any other document to be delivered by Buyer pursuant
to this Agreement or which in any manner challenges or seeks to
prevent, enjoin, alter or materially delay the transactions
contemplated hereby or which, if adversely determined, would
materially affect the ability of Buyer to perform its obligations
under this Agreement or consummate the transactions contemplated
hereby.
6.07 Bankruptcy. No bankruptcy, insolvency, reorganization,
arrangement or similar action involving Buyer, whether voluntary
or involuntary, is pending or threatened, and Buyer has no
intention of filing any such action or proceeding.
6.08 Purchase for Investment. Buyer is purchasing the
Interests for investment for its own account and not with a view
to, or for sale in connection with, any distribution thereof.
6.09 Proxy Statement. The information provided by Buyer for
inclusion in the Proxy Statement and each amendment or supplement
thereto, at the time such Proxy Statement, amendment or
supplement is filed with the SEC, at the time of mailing thereof
and at the time of the Eastpoint Special Meeting, and all
information provided by Buyer in response to comments or requests
for supplemental information from the staff of the SEC, and all
information provided by Buyer pursuant to Section 7.09, will not
include any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading.
ARTICLE VII
COVENANTS OF BUYER AND SELLERS
Buyer and Sellers each covenant and agree as follows:
7.01 Best Efforts Cooperation.
(a) Buyer shall use its commercially reasonable efforts in
good faith to perform and fulfill, and to cause Manager and SFN
to perform and fulfill, all conditions and obligations to be
fulfilled or performed by them under this Agreement and in
connection with the transactions contemplated hereby, including,
but not limited to, Buyer's covenant set forth in Section
4.01(a), to the end that the transactions contemplated hereby
will be fully and timely consummated.
(b) Each Seller shall use its commercially reasonable
efforts in good faith to perform and fulfill, and to cause the
Owner Partnership to perform and fulfill, all conditions and
obligations to be fulfilled or performed by them under this
Agreement and in connection with the transactions contemplated
hereby, to the end that the transactions contemplated hereby will
be fully and timely consummated.
7.02 Operation of the Mall. Between the date of this
Agreement and the Closing Date, unless this Agreement is
terminated as provided hereunder:
(a) Buyer shall cause, and Sellers shall permit, Manager to
continue to operate the Mall in the ordinary course consistent
with prior practice, within the scope of the budget previously
approved by Eastern and, except as set forth in this Agreement,
in accordance with the terms and conditions of the Management
Agreement. Notwithstanding any provision in the Management
Agreement to the contrary, between the date of this Agreement and
the Closing Date, Buyer shall ensure that the Manager does not,
without the written consent of Sellers or the Owner Partnership,
which consent shall not be unreasonably withheld or delayed,
incur any expense with respect to the Mall, other than any
expense within the scope of the budget previously approved by
Eastern.
(b) all Leasing Costs shall be amortized over the term of
the lease which gives rise to the respective Leasing Costs, and
all Repair and Replacement Costs shall be amortized over the
useful life of the respective repair or replacement as reasonably
estimated by the Owner Partnership's accountants. On the Closing
Date, 91 percent of the unamortized portion of any Leasing Costs
and Repair and Replacement Costs paid by the Owner Partnership
and existing as of the Closing Date shall be added to the
Purchase Price and 91 percent of the amortized portion, if unpaid
by the Owner Partnership, shall be subtracted from the Purchase
Price.
7.03 Conduct of the Owner Partnership. Between the date of
this Agreement and the Closing Date, unless this Agreement is
terminated as provided hereunder, Sellers shall not, and Sellers
shall ensure that the Owner Partnership does not, independent of
the Manager's operation of the Mall in the ordinary course, and
without the consent of Buyer:
(a) incur any material liabilities or obligations on behalf
of the Owner Partnership;
(b) sell or transfer any of the material assets or
property, tangible or intangible, of the Owner Partnership;
provided, however, that the foregoing shall not be interpreted to
prevent the Owner Partnership from (i) making regular quarterly
distributions to its partners or (ii) distributing to Sellers and
SFN any and all available cash and cash reserves of the Owner
Partnership on or prior to the Closing Date, it being
acknowledged and agreed by Buyer that Sellers intend to cause the
Owner Partnership to distribute to Sellers and SFN all available
cash and cash reserves of the Owner Partnership on or prior to
the Closing Date;
(c) sell, assign, voluntarily encumber, grant a security
interest in or enter into any license with respect to any of the
assets or properties, tangible or intangible, of the Owner
Partnership; or
(d) modify, alter, amend or terminate any lease for
premises at or service contracts with respect to the Mall or
enter into any new lease for premises at or service contracts
with respect to the Mall.
7.04 Existing Deed of Trust and Existing Loan. Between the
date of this Agreement and the Closing Date, unless this
Agreement is terminated as provided hereunder, Sellers shall not,
without the written consent of Buyer, modify, alter or amend the
terms of the Existing Deed of Trust or any of the other documents
evidencing or securing the Existing Loan, and Sellers shall not
make any voluntary payment of principal of the Existing Loan.
7.05 Estoppel Certificates. If this Agreement has not been
terminated as of the date that is three Business Days after the
Second Notice Date, then promptly thereafter, or on such earlier
or later date as the parties shall agree (giving consideration to
the requirements of Buyer's mortgage lender as to the timeliness
of the information provided therein), Eastern shall direct the
Manager to request estoppel certificates (the "Estoppel
Certificates") from all tenants of the Mall, in each case in the
form approved by Buyer's mortgage lender. Buyer shall cause the
Manager to use good faith, diligent efforts to obtain Estoppel
Certificates from all tenants of the Mall as provided in the
preceding sentence; provided, however, that nothing contained
herein shall require the Manager, Buyer or Sellers to pay money
to any tenant, commence litigation, threaten litigation or
otherwise adversely affect relations with tenants. Buyer shall
cause the Manager to promptly provide Sellers and Buyer with a
copy of all Estoppel Certificates received by the Manager and to
notify them of any tenant that refuses to deliver an Estoppel
Certificate and the reason for such refusal, if known. Upon the
request of either Seller from time to time, Buyer shall provide,
or shall cause the Manager to provide, Sellers with a status
report listing those tenants that have provided Estoppel
Certificates and those tenants that have not yet provided
Estoppel Certificates. Nothing contained in this Section is
intended to change the percentage of Estoppel Certificates
required to be delivered under Section 8.01(g).
7.06 Alternative Proposals.
(a) Unless and until this Agreement shall have been
terminated, Sellers hereby covenant and agree that prior to the
Closing Date, Sellers shall not, and shall not permit the Owner
Partnership, nor shall Sellers authorize any officer, director,
partner, employee, investment banker, attorney or other advisor
or representative of any Seller or the Owner Partnership to,
directly or indirectly, solicit, initiate or knowingly encourage
the submission of any proposal to acquire the capital stock of
Eastern or the Units or all or any portion of the general
partnership interest in Eastpoint or all or any portion of the
fee interest in the Mall or a leasehold interest in all or
substantially all of the Mall or all or any portion of the
Interests (an "Alternative Proposal").
(b) Notwithstanding any provision of this Agreement to the
contrary: (i) Sellers may participate in discussions or
negotiations with, and may furnish information to, any third
party which (without any solicitation, initiation or
encouragement in violation of Section 7.06(a)) seeks to engage in
such discussions or negotiations or requests such information, if
Eastern, in its capacity as the general partner of Eastpoint,
determines in its sole discretion, based on the advice of counsel
selected by Eastern in its sole discretion ("Legal Counsel"),
that failing to engage in such discussions or negotiations or to
provide such information might reasonably be expected to violate
the fiduciary duties of Eastern, in its capacity as the general
partner of Eastpoint, to the Eastpoint Limited Partners; and (ii)
Eastern may take and disclose to the Eastpoint Limited Partners a
position as contemplated by Rules 14d-9 and 14e-2 promulgated
under the Exchange Act with respect to any tender offer and make
such disclosure to the Eastpoint Limited Partners as may be
required under applicable law.
(c) Notwithstanding any provision of this Agreement to the
contrary, Eastern shall be permitted from time to time to take
the following actions in the circumstances described below:
(i) to withdraw or modify its approval or
recommendation of this Agreement or the transactions
contemplated hereby in a manner adverse to Buyer;
(ii) to approve or recommend or enter into an agreement
with respect to an Alternative Proposal;
(iii) to terminate this Agreement; and/or
(iv) to make disclosures under the Exchange Act and
other applicable securities laws and to take such other
actions as Eastern deems necessary or appropriate,
if, in each case: (A) an Alternative Proposal is commenced,
publicly proposed, publicly disclosed or otherwise communicated
to Eastern, in its capacity as general partner of Eastpoint, and
(B) Eastern, in its capacity as general partner of Eastpoint,
determines in its sole discretion, based on the advice of Legal
Counsel, that failure to take such action might reasonably be
expected to violate the fiduciary duties of Eastern, in its
capacity as general partner of Eastpoint, to the Eastpoint
Limited Partners. No such action by Eastern shall constitute a
breach of this Agreement by any Seller.
(d) Unless Eastern, in its capacity as general partner of
Eastpoint, determines in its sole discretion, based on the advice
of Legal Counsel, that doing so might reasonably be expected to
violate the fiduciary duties of Eastern, in its capacity as
general partner of Eastpoint, to the Eastpoint Limited Partners,
Eastpoint shall promptly advise Buyer of any inquiries or
proposals it receives relating to an Alternative Proposal. Buyer
agrees to maintain any information it receives with respect to
any Alternative Proposal in confidence and shall not disclose
such information to or discuss such information with any third
party, except (i) to the extent Buyer is legally required to
disclose such information; provided, that if Buyer determines
that it is legally required to disclose such information to any
third party, Buyer shall, unless prohibited by law, provide
Sellers with prompt written notice prior to any disclosure of
such information so that Sellers may seek a protective order or
interpose an objection with respect to the disclosure thereof;
and (ii) Buyer may disclose such information to its counsel,
subject to such counsel's agreement to maintain such information
in confidence and not to disclose such information to or discuss
such information with any third party except as provided in
clause (i) (and Buyer shall be liable for any breach of such
agreement by its counsel).
7.07 Special Meeting of Eastpoint Limited Partners and Proxy
Statement. After the expiration of the Due Diligence Period and
the satisfaction of the condition set forth in Section
8.02(g)(i), unless this Agreement shall have been terminated, and
further subject to paragraph (f) of this Section 7.07:
(a) Eastern, in its capacity as the general partner of
Eastpoint, shall take all action necessary in accordance with
applicable law and the Eastpoint Partnership Agreement to convene
a special meeting of the Eastpoint Limited Partners as promptly
as practicable to consider and vote upon the approval of this
Agreement and the transactions contemplated hereby (the
"Eastpoint Special Meeting").
(b) Eastern, in its capacity as the general partner of
Eastpoint, shall recommend that the Eastpoint Limited Partners
approve this Agreement and the transactions contemplated hereby
and shall use its reasonable efforts to obtain such approval,
including, without limitation, by timely mailing the proxy
statement described below to the Eastpoint Limited Partners;
provided, however, that nothing contained in this Section 7.07 or
any other provision of this Agreement shall prohibit Eastern from
failing to (i) convene the Eastpoint Special Meeting, (ii) make
such recommendation or (iii) use its reasonable efforts to obtain
such approval, if Eastern, in its capacity as the general partner
of Eastpoint, has determined in its sole discretion, after
consultation with and based upon the advice of Legal Counsel,
that convening the Eastpoint Special Meeting, making such
recommendation or using its reasonable efforts to obtain such
approval might reasonably be expected to violate the fiduciary
duties of Eastern, in its capacity as the general partner of
Eastpoint, to the Eastpoint Limited Partners. Notwithstanding
any provision of this Agreement to the contrary, in the event
Eastern, in its capacity as the general partner of Eastpoint, at
any time makes the determination described in the immediately
preceding sentence, Eastern shall be permitted (i) to withdraw or
modify its approval or recommendation of this Agreement or the
transactions contemplated hereby in a manner adverse to Buyer or
(ii) to terminate this Agreement. No such action by Eastern
shall constitute a breach of this Agreement by any Seller.
(c) Eastern shall promptly prepare and file with the SEC a
proxy statement pursuant to Section 14 of the Exchange Act with
respect to the Eastpoint Special Meeting in connection with the
approval of this Agreement and the transactions contemplated
hereby (the "Proxy Statement"). Eastern will cause the Proxy
Statement to comply as to form in all material respects with the
applicable provisions of the Exchange Act. Buyer will be given
an opportunity prior to filing with the SEC, and prior to mailing
in connection with the Eastpoint Special Meeting, to review and
comment on those sections of the Proxy Statement and any
amendments or supplements thereto that describe Buyer or any of
its Affiliates or otherwise contain information provided by
Buyer. Eastern will notify Buyer of the receipt of the comments
of the SEC and of any request by the SEC for amendments or
supplements to the Proxy Statement or for additional information
from the SEC or members of its staff, to the extent the same
relate to Buyer or require additional information from Buyer, and
Buyer will cooperate diligently with Eastern in responding in a
timely manner to all such comments or requests from the SEC or
members of its staff. Eastern will give Buyer notice (i) at
least three Business Days prior to the date Eastern intends to
file the preliminary Proxy Statement with the SEC and (ii) at
least two Business Days prior to the date Eastern intends to file
with the SEC any amendment or supplement to the Proxy Statement
and the final Proxy Statement or mail the Proxy Statement in
connection with the Eastpoint Special Meeting so that Buyer can
confirm that the information provided by Buyer and contained
therein has not become false or misleading; provided, that Buyer
will cooperate reasonably diligently to provide Sellers with any
information necessary to correct any statement provided by Buyer
in the Proxy Statement, any amendment of or supplement to the
Proxy Statement or the final Proxy Statement that has become
false or misleading, or to notify Sellers that no such
information is necessary, in either case to permit Sellers to
file any such amendment or supplement or the final Proxy
Statement with the SEC or to mail the Proxy Statement as soon as
possible after such notice is given to Buyer and in any case
before the expiration of the second Business Day after such
notice is given to Buyer.
(d) Buyer shall promptly furnish all information necessary
for the preparation and filing of the Proxy Statement, in
accordance with the Exchange Act, about itself, its Affiliates
(including, but not limited to, Manager and SFN) and its and
their businesses and operations and all necessary financial
information as Eastern or its counsel may reasonably request, if
available without unreasonable effort or expense, including, but
not limited to, any information required to respond to comments
or requests for supplemental information from the staff of the
SEC. Buyer shall promptly furnish Eastern with any information
necessary to correct any statement provided by Buyer in the Proxy
Statement, in any amendment of or supplement to the Proxy
Statement, in responses to comments or requests for supplemental
information from the staff of the SEC or in any filing pursuant
to Section 7.09, that has become false or misleading.
(e) In the event that the Eastpoint Limited Partners do not
approve this Agreement or the transactions contemplated hereby,
the failure to obtain such approval shall not be a default by any
Seller under this Agreement if Eastern has complied with the
foregoing provisions of this Section 7.07. Notwithstanding the
recommendation of approval by Eastern, Eastern shall be entitled
to disclose to the Eastpoint Limited Partners all effects on the
Eastpoint Limited Partners of, all risks of and all alternatives
to this Agreement and the transactions contemplated hereby.
Nothing in this Agreement shall prohibit or prevent accurate
disclosure by Eastern or Eastpoint required in any SEC document,
the Proxy Statement or any other filing under the Exchange Act or
other applicable law with respect to this Agreement, the
transactions contemplated hereby or any other matter.
(f) Notwithstanding anything to the contrary set forth
herein, in no event shall Eastern or Eastpoint have any
obligation or be required to take any action under this Section,
or if Eastern or Eastpoint have initiated such action, to
continue any such action, if:
(i) any of the conditions set forth in Sections
8.01(h), (i), (j) or (n) (without regard to any reference to
the Closing Date in such Sections) is unsatisfied at such
time and is continuing, or
(ii) at such time a Lien (except a Lien created by the
act or omission (where such party has a duty to act) of
either Seller or the Owner Partnership) that is not a
Permitted Encumbrance encumbers the fee interest in the
Mall, which Xxxx Xxxxxxx cannot remove by the payment of a
liquidated sum in the amount of $100,000 or less,
unless Buyer has expressly irrevocably waived such condition in
writing. In the event Buyer refuses to waive such condition
within ten Business Days of a request for such waiver, Eastern
shall be permitted to terminate this Agreement. No failure to
take any action or suspension of any action by Eastern or
Eastpoint, and no such termination by Eastern, pursuant to this
paragraph (f) shall constitute a breach of this Agreement by any
Seller.
7.08 Publicity; Confidentiality.
(a) Buyer and Sellers shall consult with each other before
issuing any press release or public statement with respect to
this Agreement or any transactions contemplated hereby (other
than the Proxy Statement) and shall not issue any such press
release or make any such public statement without the prior
written consent of the other party, which consent shall not be
unreasonably withheld or delayed; provided, however, that Buyer,
Eastern (in its capacity as general partner of Eastpoint) or
Eastpoint may, without the prior written consent of Eastern (in
the case of Buyer) or Buyer (in the case of either Seller), issue
such press release or make such public statement (i) as may be
legally necessary for securities filings, (ii) as required by law
or (iii) if it has used its reasonable efforts to consult with
the other party and to obtain the other party's consent but has
been unable to do so in a timely manner.
(b) Except with regard to any press release issued or
public statements made pursuant to this Section 7.08, Buyer and
Sellers shall keep confidential all negotiations and terms
regarding this Agreement and the transaction contemplated hereby,
except as legally necessary for securities filings or as
otherwise required by law, and reporting, legal, accounting and
financing purposes. Buyer acknowledges and agrees that any
information or data it acquires from Sellers or the Owner
Partnership (including, but not limited to, any and all
information or data received pursuant to Article IV), except for
information or data in the public domain (other than as a result
of a breach by Buyer or any of the parties identified in the next
succeeding sentence of an obligation of confidentiality), shall
be received and held in confidence. Buyer shall, and shall cause
its Affiliates (including, but not limited to, Manager and SFN)
and Buyer's and its Affiliates' partners, officers, directors,
employees, representatives, agents, consultants and advisors to,
(i) hold in confidence and not disclose to any third party any
such information or data (except as required by law or in
connection with the enforcement of this Agreement), (ii) not
misuse in any way any such information or data and (iii) not use
any such information or data to the detriment of Sellers or the
Owner Partnership or for the benefit of any third party. Buyer
shall provide Sellers with prompt written notice prior to any
disclosure required by law pursuant to the preceding sentence
(unless such written notice is prohibited by such law) so that
Sellers may seek a protective order or interpose an objection
with respect to the disclosure thereof. In the event this
Agreement is terminated prior to Closing, Buyer agrees to return
to Sellers all original information and documents provided to
Buyer by Sellers or the Owner Partnership under this Agreement
and any copies thereof made by Buyer, together with a copy of the
title insurance commitment obtained pursuant to Section 4.01(b).
Buyer and Sellers agree that Buyer's confidentiality obligation
with respect to information provided by Sellers regarding the
Mall or the Owner Partnership shall expire immediately after the
Closing. Notwithstanding anything to the contrary set forth in
this Agreement, in the event of Buyer's default under or breach
of this Section 7.08 or Section 7.06(d), Sellers shall be
entitled to seek and obtain money damages from the Buyer, and
shall further be entitled to seek and obtain an injunction or
injunctions to prevent breaches of such Sections and/or to compel
specific performance of such Sections, and in addition, to obtain
from Buyer court costs and reasonable attorneys' fees incurred by
Sellers in the pursuit of their remedies hereunder. The rights
and obligations of the parties under this Section 7.08 and
Section 7.06(d) shall survive termination of this Agreement.
7.09 Regulatory Filings. Buyer and Sellers shall use all
reasonable efforts to cooperate with one another in:
(i) determining the filings which are required to be
made prior to Closing with, and which consents, approvals,
permits or authorizations are required to be obtained prior
to Closing from, Governmental Authorities and any third
parties in connection with the execution and delivery of
this Agreement and the consummation of the transactions
contemplated hereby;
(ii) timely making all such filings and timely seeking
and obtaining all such consents, approvals, permits or
authorizations; and
(iii) providing all information necessary for the
preparation and filing by Eastern, in its capacity as
general partner of Eastpoint, and Eastpoint of any reports
which may be required by the Exchange Act, except that Buyer
shall only be required to provide information regarding
itself, any Affiliates (including, but not limited to,
Manager and SFN) and its and their businesses and
operations, together with all necessary financial
information with respect to the foregoing.
7.10 Interest Encumbrances. Sellers and Buyer shall, and
Buyer shall cause SFN, to execute and deliver at Closing such
consents, waivers, documents and instruments as Sellers or their
counsel reasonably request to satisfy any Interest Encumbrance.
7.11 Equity Interests in Eastpoint. Between the date of
this Agreement and the Closing Date, unless this Agreement is
terminated as provided hereunder, Eastpoint shall not issue any
Units or other equity interests in Eastpoint.
7.12 Further Assurances. Each Seller and Buyer agree and
each Seller, prior to Closing, and Buyer, after the Closing,
agree to cause the Owner Partnership, to execute and deliver such
other documents, certificates, agreements and other writings and
to take such other actions and provide such other information as
may be necessary or desirable in order to consummate or implement
expeditiously this Agreement and the transactions contemplated
hereby. The provisions of this Section 7.12 shall survive the
Closing.
7.13 Certain Termination Payments.
(a) If this Agreement is terminated pursuant to Section
10.01(i), Sellers shall promptly reimburse Buyer (i) the costs
actually incurred by Buyer in connection with this Agreement for
title examination, survey update, environmental and engineering
examination of the Mall and consultants and advisors (including,
without limitation, reasonable accountants' and attorneys' fees
and expenses), (ii) the expenses of Buyer's lenders which Buyer
has actually paid in connection with this Agreement either prior
to or within 60 days after the date this Agreement is terminated,
and (iii) one-half of any non-refundable fees Buyer has paid for
loan commitments obtained in connection with this Agreement,
which payment obligation shall survive termination of this
Agreement.
(b) If any of the following shall occur:
(i) this Agreement is terminated pursuant to Section
10.01(h) or Section 7.07(b) and, in the case of Section
7.07(b), after the date of this Agreement but prior to or at
the Eastpoint Special Meeting, either Seller shall have
furnished information to, or entered into discussions or
negotiations with, any Person with respect to an Alternative
Proposal and Eastern, in its capacity as the general partner
of Eastpoint, shall not have reaffirmed its favorable
recommendation to the Eastpoint Limited Partners of the
transaction contemplated by this Agreement; or
(ii) this Agreement is terminated pursuant to Section
7.06(c); or
(iii) this Agreement is terminated by Sellers or
Buyer pursuant to Section 10.01(a) and at the time a party
elects to so terminate both (A) Buyer is ready, willing and
able to close and (B) either Seller is not ready, willing
and able to close; or
(iv) this Agreement is terminated pursuant to Section
10.01(j);
(v) this Agreement is terminated by Buyer pursuant to
Section 10.01(e) if the order, decree, judgment or action
referred to in Section 10.01(e) arises as a result of a
default by either Seller under, or a breach by either Seller
of a representation, warranty or covenant of, this Agreement
(which default or breach is not caused by any act or
omission (where such party has a duty to act) of Manager or
Buyer or as a result of any information provided to Sellers
by Manager or Buyer);
then, in any such case described in clause (i), (ii), (iii), (iv)
or (v) of this Section 7.13, Sellers shall promptly reimburse
Buyer (x) the costs actually incurred by Buyer in connection with
this Agreement for title examination, survey update,
environmental and engineering examination of the Mall and
consultants and advisors (including, without limitation,
reasonable accountants' and attorneys' fees and expenses), (y)
the expenses of Buyer's lenders which Buyer has actually paid in
connection with this Agreement either prior to or within 60 days
after the date this Agreement is terminated and (z) any non-
refundable fees Buyer has paid for loan commitments obtained in
connection with this Agreement, which payment obligation shall
survive termination of this Agreement.
7.14 Permitted Encumbrances. Buyer has obtained from
Chicago Title Insurance Company a commitment, dated June 12,
1997, Commitment No. 4597-40012 (the "Title Commitment"), to
issue an owner's policy of title insurance at Closing with
respect to the fee interest in the Mall, subject to no exceptions
except as shown in Schedule B-Section 2 to the Title Commitment
(such exceptions are hereinafter referred to collectively as the
"Permitted Encumbrances"). A copy of Schedule B-Section 2 of the
Title Commitment is attached to this Agreement as Exhibit H. If,
as of the Closing Date, the Owner Partnership shall not own the
fee interest in the Mall free and clear of all Liens except the
Permitted Encumbrances, Buyer shall have the option, as its sole
remedy, of either (a) terminating this Agreement, in which event
the Escrow Agent shall return the Initial Deposit and the Closing
Deposit, together with interest thereon, if any, to Buyer, and
Sellers shall reimburse Buyer for Buyer's net cost of title
examination, whereupon neither party shall have any further
rights or obligations under this Agreement, or (b) accepting such
title as the Owner Partnership shall then have, without any
reduction of the Purchase Price or any credit or allowance
against the same; provided, that Buyer shall not have the option
to terminate this Agreement with respect to any encumbrance which
is of record as of the date of the Title Commitment and which is
not shown on Schedule B-Section 2 of the Title Commitment (except
for any encumbrance arising out of or in connection with the
litigation filed by Harbor City Contractors, Inc. against the
Owner Partnership, filed on January 23, 1996. From and after the
date of this Agreement, Buyer agrees to, and shall cause Manager
to, provide Sellers with prompt written notice of any matter of
which Buyer or Manager becomes aware which constitutes an
encumbrance or other interest giving rise to Buyer's option to
terminate this Agreement under this Section 7.14. If on or prior
to the Closing Date Buyer provides Sellers with written notice of
an encumbrance or other interest giving rise to Buyer's option to
terminate this Agreement under this Section 7.14, Sellers shall
have the option, but shall not have any obligation, to extend the
Closing Date to the earlier of (x) 45 days after the Closing Date
or (y) the date as of which Buyer's loan commitment from its
mortgage lender expires, as the same may be extended without cost
to Buyer and without any rise in the interest rate, which
extension Buyer agrees to seek diligently to obtain at Sellers'
request, in either case to provide Sellers with the opportunity
to cure any such defect. The term "net cost of title
examination" shall mean the expense actually incurred by Buyer
for (i) the amount, if any, charged by Chicago Title Insurance
Company for the examination of title without the issuance of a
policy and (ii) updating the survey of the Mall.
ARTICLE VIII
CONDITIONS TO CLOSING
8.01 Conditions to Obligation of Buyer. The obligation of
Buyer to pay the Purchase Price on the Closing Date in accordance
with this Agreement and to consummate the other transactions
contemplated hereby is subject to the satisfaction, on or before
the Closing Date, of the following conditions, each of which may
be waived by Buyer in its sole discretion:
(a) All the terms, agreements and conditions of this
Agreement to be complied with, performed or fulfilled by Sellers
at or prior to the Closing shall have been complied with,
performed and fulfilled in all material respects.
(b) The representations and warranties of Sellers contained
in Article V and Section 12.11 shall be true and correct in all
material respects at the date of this Agreement and shall be true
and correct in all material respects at and as of the Closing
Date as if made at and as of the Closing Date, except to the
extent any of such representations and warranties specifically
relate to an earlier date.
(c) Each Seller shall have furnished a certificate of an
authorized signatory to evidence compliance with the conditions
set forth in Sections 8.01(a) and (b) and certifying the names
and true signatures of the officers or authorized signatories of
such Seller authorized to sign the documents to which such Seller
is a party.
(d) Buyer shall have received all documents Buyer may
reasonably request relating to the existence and good standing of
Sellers in the State of Delaware and the authority of Sellers for
this Agreement, all in form and substance reasonably satisfactory
to Buyer.
(e) Buyer shall have received the opinion of Sellers'
counsel dated as of the Closing Date with respect to the matters
set forth in Exhibit D.
(f) Sellers and Owner Partnership shall have delivered all
of the certificates, documents and instruments required by this
Agreement.
(g) Manager shall have furnished Estoppel Certificates from
(i) all tenants of the Mall leasing premises over 10,000 square
feet, and (ii) tenants of the Mall leasing at least 75 percent of
the remaining leaseable area of the Mall; provided, that if
Manager, despite its good faith, diligent efforts, is unable to
obtain the Estoppel Certificates required under clauses (i) and
(ii) immediately preceding, then Sellers may, at their option,
offer to provide Buyer with indemnities or other forms of
assurance that will provide Buyer the substantial equivalent of
the missing Estoppel Certificate(s). The parties will negotiate
diligently and in good faith to resolve any disagreement over
what constitutes the "substantial equivalent" of the missing
Estoppel Certificate(s); provided, that Sellers acknowledge that
Buyer will not be obligated to accept any such "substantial
equivalent" if Buyer's mortgage lender does not agree to accept
such "substantial equivalent."
(h) After the date of this Agreement and prior to the
Closing Date, no petition seeking an order for relief shall have
been filed by or against any Anchor Tenant under the Federal
Bankruptcy Code.
(i) After the date of this Agreement and prior to the
Closing Date, no casualty damage which, in the reasonable
estimation of a licensed architect or engineer selected by
Eastern and reasonably acceptable to Buyer (the reasonable fees
and expenses of whom shall be borne one-half by Buyer and one-
half by Sellers), would cost in excess of $500,000 to repair
shall have occurred with respect to the Mall. If any casualty
determined in accordance with the preceding sentence to cost
$500,000 or less to repair occurs with respect to the Mall and
if, prior to the Closing, the Mall is not repaired to
substantially the same condition as prior to the occurrence of
such casualty, then this Agreement shall not be affected thereby
and there shall be no change in the Purchase Price. If the Owner
Partnership has collected, prior to the Closing, any casualty
insurance proceeds with respect to such casualty to the Mall,
Buyer shall receive a credit against the Purchase Price at the
Closing in the amount of 91 percent of the amount of such
casualty insurance proceeds, net of any amounts spent for interim
protection, repair and restoration. If any casualty determined
in accordance with the first sentence of this subsection (i) to
cost more than $500,000 to repair occurs with respect to the Mall
and Buyer elects to waive such condition, then Buyer shall
receive a credit against the Purchase Price at Closing as
described in the preceding sentence.
(j) As of the Closing Date, no provision of any applicable
law or regulation shall prohibit the consummation of the Closing
or the transactions contemplated by this Agreement, and no
action, suit, investigation or proceeding brought by any Person
or Governmental Authority shall be pending or, to the knowledge
of the parties to this Agreement, threatened, before any
Governmental Authority to restrain, prohibit, restrict or delay,
or to obtain damages or a discovery order in respect, of this
Agreement or the consummation of the transactions contemplated
hereby. No order, decree or judgment of any Governmental
Authority shall have been issued restraining, prohibiting,
restricting or delaying, the consummation of the transactions
contemplated by this Agreement. No insolvency proceeding of any
character, including, without limitation, bankruptcy,
receivership, reorganization, dissolution or arrangement with
creditors, voluntary or involuntary, affecting Sellers shall be
pending, and Sellers shall not have taken any action in
contemplation of, or which would constitute the basis for, the
institution of any such proceedings.
(k) On the Closing Date, the outstanding principal balance
of the Existing Loan shall be $51,000,000 or (i) if it is more
than $51,000,000, at the Closing Sellers shall credit against the
Purchase Price 91 percent of the excess, if any, of the
outstanding principal amount of the Existing Loan on the Closing
Date over $51,000,000, and Buyer shall be responsible for the
remaining nine percent of such excess, if any, or (ii) if it is
less than $51,000,000 as the result of an application of casualty
or condemnation proceeds or other funds held by the Existing
Lender (other than a payment by or on behalf of the Owner
Partnership) to principal under the terms of the Existing Deed of
Trust or any other agreements related to the Existing Loan, Buyer
shall pay to Sellers 91 percent of the excess, if any, of
$51,000,000 over the outstanding principal amount of the Existing
Loan on the Closing Date.
(l) At Closing, Buyer shall have received a payoff
statement from the Existing Lender or other evidence reasonably
satisfactory to Buyer with respect to the amounts due under or
with respect to the Existing Loan.
(m) On the Closing Date, the Owner Partnership shall be the
owner of the Mall free and clear of all Liens except the
Permitted Encumbrances.
(n) On the Closing Date, no Environmental Problem shall
exist.
(o) On or prior to the Closing Date, sellers shall have
resolved that certain litigation filed on January 23, 1996 by
Harbor City Contractors, Inc. against the Owner Partnership in a
manner that is reasonably acceptable to Buyer.
8.02 Conditions to Obligation of Each Seller. The
obligation of each Seller to transfer the Interest of such Seller
to Buyer and to consummate the other transactions contemplated
hereby is subject to the satisfaction, on or before the Closing
Date, of the following conditions, each of which may be waived by
such Seller in its sole discretion:
(a) All the terms, agreements and conditions of this
Agreement to be complied with or performed of fulfilled by Buyer
at or prior to the Closing shall have been complied with,
performed and fulfilled in all material respects.
(b) The representations and warranties of Buyer contained
in Article VI and Section 12.11 shall be true and correct in all
material respects at the date of this Agreement and shall be true
and correct in all material respects at and as of the Closing
Date as if made at and as of the Closing Date, except to the
extent any of such representations and warranties specifically
relate to an earlier date.
(c) Buyer shall have furnished to each Seller a certificate
of an authorized signatory to evidence compliance with the
conditions set forth in Sections 8.02(a) and (b) and certifying
the names and true signatures of the officers or authorized
signatories of Buyer authorized to sign the documents to which
Buyer is a party.
(d) Each Seller shall have received all documents such
Seller may reasonably request relating to the existence and good
standing of Buyer in the State of New York and the authority of
Buyer for this Agreement, all in form and substance reasonably
satisfactory to such Seller.
(e) Each Seller shall have received the opinion of Buyer's
counsel dated as of the Closing Date with respect to the matters
set forth in Exhibit E.
(f) Buyer, SFN and Manager shall have delivered all of the
certificates, documents and instruments required by this
Agreement.
(g) A favorable opinion of Xxxxxxx & Xxxxxxxxx, in
form acceptable to Sellers in their sole discretion, as to the
fairness to the Eastpoint Limited Partners, from a financial
point of view, of the transaction being entered into by Eastpoint
pursuant hereto, together with an agreement to deliver the same
opinion on the Closing Date, shall have been delivered to Sellers
by July 31, 1997, and (ii) if such opinion is obtained pursuant
to clause (i) above, an update of such opinion shall have been
delivered to Sellers on the date of the final Proxy Statement
distributed to the Eastpoint Limited Partners.
(h) A Majority-in-Interest of the Eastpoint Limited
Partners shall have duly approved this Agreement and the
transactions contemplated hereby in accordance with the Eastpoint
Partnership Agreement, it being acknowledged and agreed by Buyer
that this Agreement and consummation of the transactions
contemplated hereby is subject in all respects to obtaining such
approval.
(i) As of the Closing Date, no provision of any applicable
law or regulation shall prohibit the consummation of the Closing
and the transactions contemplated by this Agreement, and no
action, suit, investigation or proceeding brought by any Person
or Governmental Authority shall be pending or, to the knowledge
of the parties to this Agreement, threatened, before any
Governmental Authority to restrain, prohibit, restrict or delay,
or to obtain damages or a discovery order in respect of, this
Agreement or the consummation of the transactions contemplated
hereby. No order, decree or judgment of any Governmental
Authority shall have been issued restraining, prohibiting,
restricting or delaying, the consummation of the transactions
contemplated by this Agreement.
(j) No insolvency proceeding of any character, including,
without limitation, bankruptcy, receivership, reorganization,
dissolution or arrangement with creditors, voluntary or
involuntary, affecting Buyer shall be pending, and Buyer shall
not have taken any action in contemplation of, or which would
constitute the basis for, the institution of any such
proceedings.
(k) The Existing Lender shall have consented to the
transfer of the Interests pursuant to this Agreement in
accordance with the terms of the Existing Deed of Trust (which
consent may be conditioned on the prepayment of the Existing
Loan), it being acknowledged and agreed by Buyer that,
notwithstanding anything to the contrary set forth in this
Agreement, the agreement of Sellers to transfer the Interests to
Buyer and the actual transfer of the Interests by Sellers to
Buyer is subject in all respects to obtaining such consent;
provided, however, that the lack of such consent shall in no
event affect the other provisions of this Agreement. The parties
acknowledge that such consent may be unnecessary in the event the
Existing Loan has been prepaid and the Owner Partnership's
obligations under the Existing Deed of Trust have been satisfied
prior to or upon the transfer of the Interests. If the condition
set forth in this Section 8.02(k) is not satisfied on or prior to
the Second Notice Date (as extended pursuant to Section 4.05(c)),
Sellers sole rights shall be as set forth in Sections 4.05(c) and
4.05(d).
ARTICLE IX
SURVIVAL; INDEMNIFICATION
9.01 Survival. All representations and warranties in this
Agreement, or in any instrument or document furnished in
connection with this Agreement or the transactions contemplated
hereby, shall survive the Closing for a period of 60 days, except
as otherwise provided below. All such representations and
warranties and any right to assert a claim for indemnification
under Section 9.02 or Section 9.03 shall expire on the sixtieth
day after the Closing Date, except that (a) claims, if any,
asserted in writing prior to such sixtieth day and identified as
a claim for indemnification pursuant to this Article IX shall
survive until finally resolved and satisfied in full, and (b)
claims, if any, which are based upon fraud by the Sellers or
Buyer shall survive for the full period of the applicable statute
of limitations, and until finally resolved and satisfied in full.
All covenants and agreements contained herein shall survive until
fully performed in accordance with their terms.
9.02 Indemnification by the Sellers. The Sellers hereby
agree, severally and not jointly, to indemnify, defend and hold
the Buyer and each Person, if any, who controls the Buyer within
the meaning of Section 15 of the Securities Act of 1933 and
Section 20 of the Exchange Act, and their respective successors
and assigns harmless from, against and with respect to all
claims, liabilities, losses, damages, and expenses (including,
without limitation, reasonable attorneys' fees and disbursements)
incurred by the Buyer, arising out of or based upon (i) any
misrepresentation or breach of any warranty made by the Sellers
contained in this Agreement or in any certificate, instrument of
transfer or other document or agreement executed by the Sellers
in connection with this Agreement; (ii) any failure by the
Sellers to perform or observe, in full, any covenant, agreement
or condition to be performed or observed by them under this
Agreement or under any certificates or other documents or
agreements executed by the Sellers in connection with this
Agreement; (iii) the ownership, condition or operations of the
Mall, or any part thereof, prior to the Closing, including, but
not limited to, claims of third parties against the Owner
Partnership relating to events that occurred prior to the
Closing, except insofar as such losses, claims, damages,
liabilities or expenses arise out of or are based upon any act or
omission of Buyer, SFN or the Manager; or (iv) any omission or
alleged omission to state in the Proxy Statement or any amendment
or supplement thereto a material fact required to be stated
therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages,
liabilities or expenses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission
which has been made therein or omitted therefrom in reliance upon
and in conformity with information furnished by Buyer in writing
to either Seller expressly for inclusion therein.
Notwithstanding anything to the contrary set forth in this
Article IX, in the event Sellers have an indemnity obligation
under this Article IX, (a) Sellers' liability to indemnify Buyer
shall be in proportion to their pro rata share of the Purchase
Price; and (b) in no event shall the respective liability of each
Seller under this Article IX exceed the portion of the Purchase
Price actually received by such Seller pursuant to this
Agreement.
9.03 Indemnification by the Buyer. The Buyer hereby agrees
to indemnify, defend and hold each Seller, and each Person, if
any, who controls each Seller within the meaning of Section 15 of
the Securities Act of 1933 and in Section 20 of the Exchange Act,
and their respective successors and assigns harmless from,
against and with respect to all claims, liabilities, losses,
damages and expenses (including, without limitation, reasonable
attorneys' fees and disbursements) incurred by such Seller,
arising out of or based upon (i) any misrepresentation or breach
of any warranty made by the Buyer contained in this Agreement or
in any certificate, instrument of transfer or other document or
agreement executed by the Buyer in connection with this
Agreement; (ii) any failure by the Buyer to perform or observe,
in full, any covenant, agreement or condition to be performed or
observed by the Buyer under this Agreement or under any
certificates or other documents or agreements executed by the
Buyer in connection with this Agreement (subject, as to covenants
and agreements of Buyer to be performed prior to the Closing, to
the provisions of Section 10.02 limiting Sellers' remedy to
liquidated damages of the Initial Deposit and the Closing
Deposit, together with all interest thereon); (iii) the
ownership, condition or operations of the Mall, or any part
thereof, on or after the Closing, (iv) such Seller's having been
a partner of the Owner Partnership to the extent such claims,
liabilities, losses, damages and expenses relate to events
occurring on or after the Closing; or (v) any omission or alleged
omission to state in the Proxy Statement or any amendment or
supplement thereto a material fact required to be stated therein
or necessary to make the statements therein not misleading, to
the extent such losses, claims, damages, liabilities or expenses
arise out of or are based upon any untrue statement or omission
or alleged untrue statement or omission which has been made in or
omitted from the Proxy Statement or any amendment or supplement
thereto in reliance upon and in conformity with information
furnished by Buyer in writing to either Seller expressly for
inclusion therein.
9.04 Procedures; Exclusivity.
(a) With respect to claims or demands by third parties,
whenever a party indemnified pursuant to Section 9.02 or 9.03 (an
"Indemnified Party") shall have received notice that such a claim
or demand has been asserted or threatened, which, if true, would
be subject to an indemnity under Section 9.02 or 9.03 hereof, the
Indemnified Party shall as soon as reasonably possible, and in
any event within 30 days of receipt of such notice, notify the
party responsible for such indemnification (the "Indemnifying
Party") of such claim or demand and of all relevant facts within
its knowledge which relate thereto; provided, however, that the
failure of the Indemnified Party to give timely notice hereunder
shall not relieve the Indemnifying Party of its indemnification
obligations under this Agreement unless, and only to the extent
that, lack of notice causes the claims for which the Indemnifying
Party is obligated to be greater than they would have been had
the Indemnified Party been given timely notice hereunder or
materially prejudices the ability of the Indemnifying Party to
defend such claims. The Indemnifying Party shall then have the
right, but not the obligation, to assume the defense of any such
claim or demand. If the Indemnifying Party fails to assume the
defense of any such claim or demand as soon as reasonably
possible, or if the Indemnified Party reasonably determines that
a conflict may arise in the defense of the Indemnified and
Indemnifying Parties, then the Indemnified Party shall have the
right to undertake the defense of any such claims or demands, at
the expense of the Indemnifying Party, utilizing counsel selected
by the Indemnified Party. If the Indemnified Party undertakes
the defense of any such claims or demands pursuant to the
immediately preceding sentence, the Indemnified Party shall give
written notice to the Indemnifying Party of any settlement or
compromise of any such claim or demand prior to the settlement or
compromise thereof.
(b) After the Closing, the indemnification provided for by
this Article IX shall constitute the exclusive remedy of each
party to this Agreement with respect to any matter which is
subject to indemnification hereunder.
9.05 Buyer's Conveyance Tax Indemnity. Buyer shall
indemnify Sellers against, and hold Sellers harmless from, any
and all conveyance, recording or similar taxes (collectively, a
"Conveyance Tax"), and any interest, penalties or expenses
related thereto, that may be levied or imposed by any state,
county or municipal authority (a "Tax Authority") with respect to
the transaction contemplated by this Agreement; provided, that
Sellers shall pay one-quarter of any Conveyance Tax (but not
interest, penalties or expenses related thereto to the extent
such interest, penalties or expenses are due to any act of Buyer
without fault by either Seller) levied or imposed by a Tax
Authority within 60 days after the Closing Date.
ARTICLE X
TERMINATION, DEFAULTS AND REMEDIES
10.01 Termination. This Agreement may be terminated:
(a) by the Buyer or either Seller at any time after
December 31, 1997; provided, that at Seller's request, if Buyer
is able, using commercially reasonable efforts in good faith, to
obtain an extension of the Commitment of Buyer's mortgage lender
to January 15, 1998, such date shall be extended to January 15,
1998, time being of the essence as to such dates;
(b) by the mutual agreement of all parties at any time;
(c) by Buyer, in accordance with Section 4.03(a)(i) or
4.05(a)(x);
(d) by either Seller, in accordance with Section 7.06 or
7.07;
(e) by Buyer or either Seller if any Governmental Authority
shall have issued an order, decree, judgment or other action
restraining, enjoining or otherwise prohibiting the consummation
of the transactions contemplated by this Agreement and such
order, decree or other action shall have become final and non-
appealable; provided, that the party seeking to terminate shall
have used its reasonable efforts to appeal such order, decree,
ruling or other action unless such order, decree, ruling or other
action was against or with respect to the non-terminating party,
in which event no such reasonable efforts shall be required;
(f) by Buyer if an insolvency proceeding of any character,
including, without limitation, bankruptcy, receivership,
reorganization, dissolution or arrangement with creditors,
voluntary or involuntary, affecting Eastern or Eastpoint shall be
pending, or if Eastern or Eastpoint shall have taken any action
in contemplation of, or which would constitute the basis for, the
institution of any such proceedings;
(g) by either Seller if an insolvency proceeding of any
character, including, without limitation, bankruptcy,
receivership, reorganization, dissolution or arrangement with
creditors, voluntary or involuntary, affecting Buyer shall be
pending, or if Buyer shall have taken any action in contemplation
of, or which would constitute the basis for, the institution of
any such proceedings;
(h) by either Seller or Buyer if a Majority-in-Interest of
the Eastpoint Limited Partners do not approve this Agreement and
the transactions contemplated hereby in accordance with the
Eastpoint Partnership Agreement at the Eastpoint Special Meeting;
(i) by either Seller in the event Sellers do not receive
the fairness opinion described in Section 8.02(g)(i) by July 31,
1997, time being of the essence of such July 31, 1997 date;
provided, that in the event that Sellers do not receive such
fairness opinion by July 31, 1997, Sellers' right to terminate
this Agreement must be exercised by written notice provided to
Buyer on or before 7:00 p.m. on August 1, 1997, time being of the
essence of such August 1, 1997 date;
(j) by either Seller in the event Sellers do not receive
the fairness opinion described in Section 8.02(g)(ii) on the date
of the final Proxy Statement distributed to the Eastpoint Limited
Partners; or
(k) by either Seller in accordance with Section 4.05(c) or
(d).
Termination shall be upon two Business Days' written notice
(except in the case of Section 4.05(d), in which case the
termination date shall be on the Extension Date). In the event
of such termination, this Agreement shall be abandoned without
any liability or further obligation to any other party to this
Agreement unless otherwise expressly stated herein. In the event
of termination pursuant to Section 10.01(a) by either Seller (if
either Seller is not ready, willing and able to close on the date
it elects to terminate) or by Buyer (if Buyer is ready, willing
and able to close on the date it elects to terminate), or Xxxxxxx
00.00(x), (x), (x), (x), (x), (x), (x), (x) or (k), or in the
event of any termination described in Section 4.03(b)(2) where
Buyer is entitled to a return of the Initial Deposit and, if the
Closing Deposit has then been paid to Escrow Agent, the Closing
Deposit, in accordance with such Section 4.03(b)(2), then Buyer
shall be entitled to the return of the Initial Deposit, together
with all interest earned thereon, if any, and, if the Closing
Deposit has then been paid to Escrow Agent, the Closing Deposit,
together with all interest earned thereon, if any. In the event
of termination pursuant to any other subsection of this Section
10.01, Sellers shall be entitled to receive the Initial Deposit,
together with all interest earned thereon, if any, and, if the
Closing Deposit has then been paid to Escrow Agent, the Closing
Deposit, together with all interest earned thereon, if any. This
Section 10.01 shall not apply in the event the transactions
contemplated by this Agreement are not consummated as a result of
the failure or refusal of a party to consummate the transactions
contemplated by this Agreement for any reason not otherwise
permitted by this Agreement or a default under, or breach by
Sellers or the Buyer of a representation, warranty or covenant
of, this Agreement. In such event, the provisions of Section
10.02 shall apply.
10.02 Default; Remedies. This Section shall apply in
the event that a party fails or refuses to consummate the
transactions contemplated by this Agreement for any reason not
otherwise permitted by this Agreement or if any default under, or
breach of any representation, warranty or covenant of, this
Agreement on the part of a party (the "Defaulting Party") shall
have occurred that results in the failure to consummate the
transactions contemplated hereby. In such event, the non-
Defaulting Party shall be entitled to (i) terminate this
Agreement and receive the Initial Deposit, together with all
interest earned thereon, if any, and, if the Closing Deposit has
then been paid to Escrow Agent, the Closing Deposit, together
with all interest earned thereon, if any, which, in the case of
Sellers, shall be Sellers' sole and exclusive remedy and shall
constitute liquidated damages for default by Buyer under, or any
breach by Buyer of any representation, warranty or covenant of,
this Agreement prior to the Closing, except for (x) any default
by Buyer under, or any breach by Buyer of, Sections 7.08 or
7.06(d), Sellers' remedies for Buyer's default under or breach of
such Sections 7.08 and 7.06(d) being governed by Section 7.08,
and (y) any breach by Buyer of its obligations under Article XI,
in the event of which breach Sellers shall have the remedies of a
non-Defaulting Party set forth in clause (ii) of this Section
10.02, and (ii) if Buyer is the non-Defaulting Party, Buyer shall
be entitled to seek and obtain specific performance pursuant to
Section 10.03, or Buyer shall be entitled to seek and either
Seller (as a non-Defaulting Party in the event of a breach by
Buyer of its obligations under Article XI) shall be entitled to
seek and obtain money damages from the Defaulting Party plus its
court costs and reasonable attorneys' fees in connection with the
pursuit of its remedies hereunder; provided, that in no event
shall either party be liable to the other for any consequential,
indirect or punitive damages.
10.03 Specific Performance. In the event that any
Seller shall fail or refuse to consummate the transactions
contemplated by this Agreement for any reason not otherwise
permitted by this Agreement or if any default under, or breach of
any representation, warranty or covenant of, this Agreement on
the part of such Seller shall have occurred that results in the
failure to consummate the transactions contemplated hereby, then
in addition to the other remedies provided in this Article X,
Buyer shall be entitled to obtain an order of specific
performance thereof against such Seller from a court of competent
jurisdiction, provided that Buyer files such a request with such
court within 45 days after it becomes aware of such failure,
refusal, default or breach. In addition, Buyer shall be entitled
to obtain from such Seller court costs and reasonable attorneys'
fees incurred by it in enforcing its rights hereunder. As a
condition to seeking specific performance hereunder, the Buyer
shall not be required to tender the Purchase Price but shall be
ready, willing and able to do so.
10.04 Survival. The terms of Sections 10.02 and 10.03
shall survive any termination of this Agreement.
ARTICLE XI
POST-CLOSING COVENANTS AND ADJUSTMENTS
11.01 Existence of Eastpoint. Eastpoint shall not
dissolve for at least 60 days after the Closing Date, and will
retain $500,000 of undistributed cash for at least such 60-day
period. Provided that Eastpoint retains at least $500,000 for
such 60-day period, Buyer agrees that under no circumstances will
it seek to recover any amounts distributed by Eastpoint to its
partners.
11.02 Adjustment of Rents and Expenses.
(a) At the Closing, Sellers and Buyer shall prorate, as of
the Closing Date, (i) all base or fixed rents ("Basic Rents"),
(ii) any escalations or pass-throughs of operating expenses,
taxes and other similar expenses ("Additional Rents"), (iii) any
prepaid Basic Rents or Additional Rents received from all tenants
and occupants of the Mall, (iv) any taxes, utilities, assessments
and operating expenses of the Owner Partnership relating to the
Mall and (v) the fees payable by the Owner Partnership to the
Manager under the Management Agreement. To the extent the
information necessary to determine the precise adjustments in
accordance with the preceding sentence is not available as of the
Closing Date, then the proration will be based on the prior
period for which such information is available and will be
subsequently adjusted when the information for such period
becomes available.
(b) Amounts payable by tenants and occupants of the Mall
relating to sales made or gross receipts realized during the
reporting year in which the Closing Date occurs ("Percentage
Rents") shall not be adjusted at Closing but rather shall be
adjusted within 30 days of receipt of such amounts from the
applicable tenants of the Mall.
(c) All prorations and adjustments made hereunder will be
made based upon the number of days Sellers and Buyer own the
Interests in the period to which the payment or billing relates,
except that Percentage Rent shall be adjusted based upon sales in
the respective period of ownership of the Interests. Unless the
Closing occurs on the first day of a month, sales for the month
in which the Closing occurs shall be further prorated based upon
the number of days of Sellers' and Buyer's respective ownership
of the Interests during such month.
(d) In addition, 91 percent of (i) all Basic Rents,
Additional Rents and Percentage Rents uncollected as of the
Closing Date and owed by tenants and occupants of the Mall on the
Closing Date for any period preceding the Closing Date, and (ii)
any monies due under promissory notes owed by tenants or
occupants of the Mall which are not included in clause (i)
immediately preceding (collectively, the "Past Due Rent"), shall
be reimbursed to Sellers by the Owner Partnership following the
Owner Partnership's collection thereof (after the payment of the
applicable management fees to Manager), provided that all Basic
Rents, Additional Rents and Percentage Rents collected by the
Owner Partnership following the Closing shall be applied first to
the rents due and payable after Closing, and after all rents due
after Closing have been paid, then to the month in which the
Closing occurs (if not previously collected), and finally to the
Past Due Rent; provided, however, that for purposes of the
foregoing application, prepayments of Basic Rents, Additional
Rents and Percentage Rents shall be applied to the immediately
succeeding month prior to being applied to Past Due Rent. In
addition, any payment specifically identified by a tenant as for
a prior period shall be so applied. Notwithstanding anything to
the contrary set forth in this paragraph (d), Buyer and Sellers
acknowledge and agree that under the terms of the lease between
Anchor Tenant Schottenstein Stores Corporation (doing business as
Value City) and the Owner Partnership, Value City pays Basic Rent
to the Owner Partnership 60 days in arrears, and that after the
Closing Date the Owner Partnership shall be entitled to apply the
Basic Rent payments it receives from Value City under such lease
to the current month, notwithstanding any provision in such lease
that such Basic Rent applies to an earlier period.
(e) All Additional Rents collected by the Owner Partnership
on and after the Closing Date which are not due and payable on
the Closing Date shall be prorated based upon the number of days
in the period to which the payment or billing therefor relates.
For a period of nine months from the Closing Date, Buyer shall
cause the Owner Partnership to use reasonable efforts (excluding
retention of attorneys) to collect (but shall not be liable for
the failure to so collect) (i) all Past Due Rent, and (ii) all
Additional Rents on and after the Closing Date which are not due
and payable on the Closing Date in the usual course of operation
of the Mall, and 91 percent of any such amounts shall be paid to
Eastern for the benefit of the Sellers within ten Business Days
following the end of the month in which collection thereof
occurred, after deducting the reasonable expenses incurred in
connection with the collection thereof and the payment of
applicable management fees to Manager. The Owner Partnership
hereby assigns to Sellers all rights relating to all Basic Rents,
Additional Rents and Percentage Rents which are owed by non-
occupants of the Mall on the Closing Date for any period prior to
the Closing Date, including the right to collect such rents and
charges, with respect to which amounts no management fees shall
be paid or payable to Manager, and there shall be no proration
thereof between the parties except that upon receipt of any such
amounts, Sellers shall remit nine percent thereof to SFN (after
deducting from such amounts received the reasonable expenses
incurred in connection with the collection thereof). The Owner
Partnership has acknowledged agreement to the foregoing
assignment by signing in the place indicated on the signature
pages of this Agreement. If any such amounts are paid to the
Owner Partnership after the Closing, Buyer shall cause the Owner
Partnership to promptly remit 91 percent of such amounts to
Eastern for the benefit of the Sellers.
(f) The obligation to make the adjustments covered by this
Section 11.02 shall continue through December 31, 1998 (the
"Final Adjustment Date"); provided that either Seller, by notice
given to Buyer on or prior to December 16, 1998, may extend such
period at its discretion to any future Final Adjustment Date
specified by such Seller; provided, further, that from time to
time thereafter either Seller, by notice given to Buyer on or
prior to any extended Final Adjustment Date, may further extend
same to any future Final Adjustment Date specified by such
Seller.
11.03 Cooperation with respect to Tax Returns and
Reports. Each party shall reasonably cooperate after the Closing
Date with respect to information required by the other parties
hereto in connection with the filing of any federal, state or
local property, sales, income, use, excise, franchise,
employment, ad valorem or similar tax returns.
11.04 Rights under Management Agreement. Buyer shall
ensure that Sellers shall continue to have the rights set forth
under Section 2.1(r) of the Management Agreement for a period of
three years after the Closing Date.
ARTICLE XII
MISCELLANEOUS
12.01 Notices. Any notices, consents or other
communication required or permitted hereunder shall be in writing
and shall be sufficiently given if personally delivered or if
sent by telegram or confirmed facsimile transmission or by
registered or certified mail, postage prepaid, with return
receipt requested, or by national overnight delivery service,
addressed:
if to Buyer, to:
Shopco Advisory Corp.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxxx, Chairman
Facsimile: (000) 000-0000
with a copy to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxx Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
if to Eastpoint or Eastern, to:
Eastern Avenue Inc.
c/x Xxxxxx Brothers Inc.
3 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, President
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxxxxx & Xxxxxxx Professional Corporation
00 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address and/or to the attention of such other
Person as any party hereto may designate by written notice to the
other parties hereto. Any notice given hereunder shall be deemed
to have been given at the time of receipt thereof by the Person
to whom such notice is given.
12.02 Amendments; No Waivers.
(a) Any provision of this Agreement may be amended or
waived if, and only if, such amendment or waiver is in writing
and signed, in the case of an amendment, by Buyer and Sellers, or
in the case of a waiver, by Buyer if such waiver is sought to be
enforced against Buyer or by Sellers if such waiver is sought to
be enforced against Sellers.
(b) No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof, nor any
abandonment or discontinuance of steps to enforce any such right,
power or privilege, preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
12.03 Expenses; Attorneys' Fees.
(a) Subject to Section 12.03(b), and except as otherwise
expressly set forth in this Agreement, all costs and expenses
incurred in connection with this Agreement shall be paid by the
party incurring such cost or expense.
(b) In any litigation between the parties arising out of
this Agreement, the losing party shall pay to the prevailing
party all reasonable expenses and court costs (including, but not
limited to, reasonable attorneys' fees and disbursements)
incurred by the prevailing party. A party shall be considered
the prevailing party if:
(i) it initiated the litigation and substantially
obtains the relief it sought, either through a judgment or
the losing party's voluntary action before trial or
judgment;
(ii) the other party withdraws its action without
substantially obtaining the relief it sought; or
(iii) it did not initiate the litigation and
judgment is entered for either party, but without
substantially granting the relief sought.
12.04 Successors and Assigns; No Third Party
Beneficiaries. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that Sellers may not
assign, delegate or otherwise transfer any of their respective
rights or obligations under this Agreement without the consent of
Buyer, and Buyer may not assign, delegate or otherwise transfer
any of its rights or obligations under this Agreement without the
consent of Sellers, except as set forth in Section 2.01. Neither
this Agreement nor any provision hereof is intended to confer
upon any Person other than the parties hereto any rights or
remedies hereunder. Nothing in this Agreement shall be construed
to create any rights or obligations except among the parties
hereto, and no Person shall be regarded as a third-party
beneficiary of this Agreement.
12.05 Governing Law. This Agreement shall be governed
by, and construed and interpreted in accordance with, the laws of
the State of New York.
12.06 Submission to Jurisdiction; Agent for Service of
Process. Each party hereby irrevocably and unconditionally
consents to submit to the exclusive jurisdiction of the courts of
the United States of America located in the Borough of Manhattan,
New York, New York, for any actions, suits or proceedings arising
out of or relating to this Agreement (and each party agrees not
to commence any action, suit or proceeding relating thereto
except in such courts), and further agrees that service of any
process, summons, notice or document by U.S. registered mail to
its address as set forth above shall be effective service of
process for any action, suit or proceeding brought against such
party in any such court. Each party hereby irrevocably and
unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement in
the courts of the United States of America located in the Borough
of Manhattan, New York, New York, and hereby further irrevocably
and unconditionally waives and agrees not to plead or claim in
any such court that any such action, suit or proceeding brought
in any such court has been brought in an inconvenient forum. The
parties hereto hereby waive any right to a jury trial in any
action, suit or proceeding arising out of the subject matter
hereof.
12.07 Severability. In the event that any provision of
this Agreement or the application hereof to any person, entity,
property or circumstances shall be held to any extent to be
invalid or unenforceable, the remainder of this Agreement, and
the application of such provision to persons, entities,
properties or circumstances other than those as to which it has
been held invalid or unenforceable, shall not be affected
thereby, and each provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
12.08 Counterparts; Effectiveness. This Agreement may
be signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
12.09 Entire Agreement. This Agreement, together with
the Exhibits and Schedules hereto, constitutes the entire
agreement and understanding among the parties hereto with respect
to the subject matter hereof and supersedes all prior agreements,
understandings and negotiations, both written and oral, between
the parties with respect to the subject matter of this Agreement.
12.10 Headings. The Article, Section and Exhibit
headings and the table of contents herein are for convenience of
reference only and do not constitute a part of this Agreement and
shall not be deemed to limit or affect any of the provisions
hereof. Except as otherwise provided in this Agreement, all
references in this Agreement to designated Articles, Sections,
Exhibits and other subdivisions are to designated Articles,
Sections, Exhibits or other subdivisions of this Agreement, and,
except as the context otherwise requires, the terms "hereof,"
"herein" and "hereunder" and other words of similar import refer
to this Agreement as a whole and not to any particular Section or
other subdivision.
12.11 No Brokers. Sellers and Buyer acknowledge that
this Agreement was brought about by direct negotiation among the
parties to this Agreement and represent that neither Sellers nor
Buyer know of any investment banker, broker, finder or agent
entitled to a commission, finder's fee or like compensation in
connection with this transaction. Sellers and Buyer shall
indemnify and defend each other against any costs, claims or
expenses (including, but not limited to, reasonable attorneys'
fees and disbursements) arising out of the breach of their
respective representations in this paragraph. The
representations and obligations under this paragraph shall
survive for 60 days after the Closing.
12.12 Liability of Sellers. The liability of the
Sellers hereunder shall be several and not joint, in proportion
to their pro rata share of the Purchase Price.
12.13 Exculpation. This Agreement and all documents,
agreements, understandings and arrangements relating to the
transactions contemplated hereby have been or will be executed or
entered into on behalf of Buyer and each Seller by the
undersigned, in their respective capacities as a partner or
officer of such entity, and neither the partners, directors,
officers nor shareholders of any of Buyer or the Sellers shall be
bound or have any personal liability hereunder or thereafter.
Buyer shall look solely to the assets of Sellers for satisfaction
of any liability of Sellers in respect hereof, and all documents,
agreements, understandings and arrangements relating hereto, and
will not seek recourse or commence any action against any of the
partners, directors, officers, shareholders or employees of any
of the Sellers or any of their personal assets for the
performance or payment of any obligation of any of the Sellers
hereunder or thereunder. Sellers shall look solely to the assets
of Buyer for satisfaction of any liability of Buyer in respect
hereof, and all documents, agreements, understandings and
arrangements relating hereto, and will not seek recourse or
commence any action against any of the partners or employees of
Buyer or any of their personal assets for the performance or
payment of any obligation of any of the Sellers hereunder or
thereunder. The foregoing shall also apply to any future
documents, agreements, understandings, arrangements and
transactions hereunder between Buyer and Sellers.
12.14 Interest on Deposits. The party that receives the
Initial Deposit and/or the Closing Deposit (together with the
interest thereon) in accordance with this Agreement shall be
responsible for any income tax liability arising out of the
interest accrued on the Initial Deposit and/or the Closing
Deposit, which shall be paid by the party receiving such deposits
in accordance with the provisions of the Escrow Agreement. This
Section 12.14 shall survive any termination of this Agreement.
12.15 Interpretation. The parties hereto acknowledge and
agree that: (i) each party and its counsel reviewed and
negotiated the terms and provisions of this Agreement and have
contributed to its revision; (ii) the rule of construction to the
effect that any ambiguities are resolved against the drafting
party shall not be employed in the interpretation of this
Agreement; and (iii) the terms and provisions of this Agreement
shall be construed fairly as to all parties hereto and not in
favor of or against any party, regardless of which party was
generally responsible for the preparation of this Agreement.
12.16 References to Time. All references to time in this
Agreement shall mean New York City time.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
SHOPCO ADVISORY CORP.
By: /s/ Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: Chairman
EASTPOINT MALL LIMITED
PARTNERSHIP
By: EASTERN AVENUE INC.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
EASTERN AVENUE INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
With respect to Section 11.02
of this Agreement only:
EASTPOINT PARTNERS, L.P.
By: EASTPOINT MALL LIMITED
PARTNERSHIP
Its: Managing General Partner
By: EASTERN AVENUE INC.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
