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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is dated as of March 15, 2000, by and
between Xxxxxx X. Xxxxxxxx and Xxxx X. Xxxxxx, not personally but as Trustees
under that certain Trust Declaration of the Crossroads Shopping Center Trust
dated November 2, 1990 ("SELLER"), and ST. CLOUD MALL L.L.C., a Delaware limited
liability company ("PURCHASER").
RECITALS
WHEREAS, Seller is the owner of the real property commonly known as
Crossroads Center, St. Cloud, Xxxxxxx County, Minnesota.
WHEREAS, Seller desires to sell to Purchaser substantially all of its
property, both real and personal, which is related to such mall, and Purchaser
desires to purchase such property, upon the terms and subject to the conditions
contained herein.
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE I
Definitions
1.1 Definitions. For purposes of this Agreement, the following terms shall
have the meanings indicated below:
"ADA" shall mean the Americans With Disabilities Act, as amended.
"AFFILIATE" shall mean a Person that directly or indirectly through one or
more intermediaries controls, is controlled by, or is under common control with,
the Person specified.
"AGREEMENT" shall mean this Purchase and Sale Agreement, as amended or
modified from time to time hereafter in accordance with the terms hereof.
"ANCHOR" shall mean each Person identified in SCHEDULE 1.1-1.
"BOOKS AND RECORDS" shall mean all records, books of account and papers of
Seller relating to the construction, ownership and operations of the Property,
including architect's drawings, blue prints and as-built plans, maintenance
logs, copies of warranties and guaranties, licenses and permits, instruction
books, employee manuals, records and correspondence relating to insurance
claims, financial statements, operating budgets, paper and electronic media
copies of data and other information relating to the Property available from
personal computers, structural, mechanical, geotechnical or other engineering
studies, soil test reports, environmental reports, Underground Storage Tank
reports, feasibility studies, appraisals, ADA surveys or reports, OSHA asbestos
surveys, marketing studies, mall documents and compilations, lease summaries and
originals and/or copies of Leases, the REA and the Contracts and correspondence
related thereto, in each case to the extent the same is in Seller's possession
or control.
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"CASUALTY" shall mean any damage to or destruction of the Property or any
portion thereof caused by fire or other casualty, whether or not insured.
"CLOSING" shall have the meaning set forth in Section 4.1.
"CLOSING DATE" shall have the meaning set forth in Section 4.1.
"CLOSING DOCUMENTS" shall mean the Seller Closing Documents and Purchaser
Closing Documents, collectively.
"CLOSING ESCROW AGREEMENT" shall mean the escrow agreement for deposit of
the Closing Documents by and among Seller, Buyer and Escrow Agent, in the form
of EXHIBIT C attached hereto.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"CONTRACTS" shall mean the service, maintenance and other contracts and
concessions that are currently in effect and to which Seller is a party
respecting the use, maintenance, development, sale or operation of the Property
or any portion thereof, including that certain Management Agreement dated as of
September 30, 1999 between Seller and Manager (but excluding this Agreement, the
Leases, the Permitted Exceptions and the REA) which are listed on SCHEDULE
1.1-2, together with any additions thereto, modifications thereof or
substitutions therefor hereafter entered into in accordance with the provisions
of this Agreement.
"DEFECT" shall mean any Lien, encumbrance, easement, agreement,
restriction, proceeding, lis pendens notice, encroachment or exception to title,
other than the Permitted Exceptions, which first arose after October 28, 1999
and was caused directly or indirectly by Seller's intentional or willful acts or
omissions (Purchaser hereby acknowledging and agreeing that the acts or
omissions of Manager, Second Lender or Purchaser shall not be imputed to Seller,
and matters approved or consented to by any of them will not be considered
"Defects").
"DISAPPROVAL NOTICE" shall have the meaning set forth in Section 3.2.
"ESCROW AGENT" shall mean First American Title Insurance Company, 00 X.
XxXxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000.
"EXECUTION DATE" shall mean the date of this Agreement, which shall be the
date on which this Agreement has been duly executed by Seller and Purchaser.
"IMPROVEMENTS" shall mean improvements, structures, fixtures, facilities,
installations, machinery and equipment in, on, over or under the Land, including
the foundations and footings therefor, elevators, plumbing, air conditioning,
heating, ventilating, mechanical, electrical and utility systems (except to the
extent owned by a utility company), signs and light fixtures (except to the
extent of trade fixtures and equipment owned by tenants under the Leases),
doors, windows, fences, parking lots, walks and walkways and each and every
other type of physical improvement to the extent owned, in whole or in part, by
Seller, located at, on or affixed to the Land, to the full extent such items
constitute or are or can or may be construed as realty under the laws of the
State of Minnesota.
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"INDEMNIFIED PARTY" shall have the meaning set forth in Section 9.3.
"INDEMNIFIED PURCHASER PERSONS" shall have the meaning set forth in Section
9.1.
"INDEMNIFIED SELLER PERSONS" shall have the meaning set forth in Section
9.2.
"INDEMNIFYING PARTY" shall have the meaning set forth in Section 9.3.
"LAND" shall mean those certain parcels of land described on EXHIBIT A.
"LEASES" shall mean those leases, tenancies, concessions, licenses and
occupancy agreements currently in effect and to which Seller or any of its
predecessors in title is a party affecting or relating to the Property which are
listed on SCHEDULE 1.1-3, together with any additions thereto, modifications
thereof or substitutions therefor hereafter entered into in accordance with the
provisions of this Agreement.
"LIENS" shall mean any liens, security interests, judgments or charges that
encumber any part of the Land, the Improvements, or the Personal Property owned
by Seller, including mortgages, deeds of trust, mechanics', materialmen's,
judicial, tax or governmental liens, pledges, options, rights of first offer or
first refusal or other similar items.
"LOSSES" shall mean, with respect to any obligation to indemnify Seller,
the Indemnified Seller Persons, Purchaser or the Indemnified Purchaser Persons,
any and all claims, actions, suits, demands, losses, damages, liabilities,
obligations, judgments, settlements, awards, penalties, costs or expenses,
including reasonable attorneys' fees and expenses.
"MANAGER" shall mean General Growth Management, Inc., a Delaware
corporation.
"OPTION FEE" shall mean the sum of $50,000.00 which has previously been
paid by Purchaser to Seller under the terms of that certain Option Agreement
dated as of September 30, 1999, as amended pursuant to that certain First
Amendment to Option Agreement, dated of even date herewith (the "Option
Agreement").
"PARTY" shall mean a party to the REA or a Contract (or the successor or
assignee thereof) or a Tenant under a Lease, in each case other than Seller or
its predecessors in title with respect to the Property.
"PERMITTED EXCEPTIONS" shall mean (i) the exceptions to title to the Real
Property listed on Schedule B of Owner's Policy No. 59-5012C dated as of October
28, 1999 issued by the Title Company to Purchaser in connection with the
execution and delivery of the Option Agreement a copy of which is attached
hereto and made a part hereof as EXHIBIT D, (ii) all matters shown on the
Updated Title Commitment, (iii) all matters revealed by the Updated Survey and
(iv) any exceptions, encumbrances or liens that have been, or are hereafter
caused, agreed to or permitted to be recorded against the Real Property by
Second Lender (as hereinafter defined), Manager and/or Purchaser (Purchaser
hereby acknowledging and agreeing that the acts or omissions of Manager shall
not be imputed to Seller).
"PERSON" shall mean any individual, corporation, partnership, limited
liability company, governmental unit or agency, trust, estate or other entity of
any type.
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"PERSONALTY" shall mean all of the personal property, both tangible and
intangible, owned by Seller and located in or upon or used in connection with
the operation and maintenance of the Property, including: machinery; equipment;
building supplies and materials; consumables; inventories; names, logos,
trademarks, trade names and copyrights; all assignable licenses, permits and
certificates of occupancy; all assignable guarantees or warranties (including
performance bonds obtained by, or for the benefit of, Seller, pertaining to the
ownership, construction or development of the Real Property or any part
thereof); the Books and Records; computer and peripheral equipment, computer
software and data contained in hard drives and on diskette; advertising
materials; and telephone exchange numbers. Without limiting the foregoing,
"Personalty" shall include the property listed on SCHEDULE 1.1-4. Personalty
shall not include personal items belonging to Tenants or to employees of Seller,
or the rights of Seller in and to the Leases, the Contracts and the cash and the
cash accounts of Seller (including any cash or cash accounts constituting the
Security Deposits).
"PROPERTY" shall mean (a) the Real Property, (b) the Personalty, (c) the
rights and interests of Seller in, to and under all Leases, (d) the rights and
interests of Seller in, to and under the REA, and (e) the rights and interests
of Seller in, to and under the Contracts to the extent assignable.
"PURCHASER CLOSING DOCUMENTS" shall have the meaning set forth in Section
4.3.
"PURCHASE PRICE" shall have the meaning set forth in Section 2.2.
"REAL PROPERTY" shall mean the Land and the Improvements, together with all
of the estate, right, title and interest of Seller therein, and in and to (a)
any land lying in the beds of any streets, roads or avenues, open or proposed,
public or private, in front of or adjoining the Land to the center lines
thereof, and in and to any awards to be made in lieu thereof and in and to any
unpaid awards for damage to the foregoing by reason of the change of grade of
any such streets, roads or avenues, and (b) all easements, rights, licenses,
privileges, rights-of-way, strips and gores, hereditaments and such other real
property rights and interests appurtenant to the foregoing (including all rights
of Seller under the REA).
"REA" shall mean that certain Construction, Operation and Reciprocal
Easement Agreement dated April 2, 1984 by and between Xxxxxx-Xxxxxx Corporation
d/b/a Target Stores and First Union Real Estate Equity and Mortgage Investments,
as supplemented and/or amended by (a) that certain Supplemental to Construction,
Operation and Reciprocal Easement Agreement dated Xxxxx 0, 0000, (x) that
certain Second Supplement to Construction, Operation and Reciprocal Easement
Agreement dated October 1, 1991 (c) that certain Third Supplement to
Construction, Operation and Reciprocal Easement Agreement dated January 20, 1994
and (d) letter agreement dated September 23, 1997, from First Union Real Estate
Investments to Target/Mervyn's Property Development as modified by letter dated
September 29, 1997 from Target/Mervyn's Property Development to First Union Real
Estate Investments, together with any additions thereto, modifications thereof
or substitutions therefor hereafter entered into in accordance with the
provisions of this Agreement.
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"REGULATIONS" shall mean the final, temporary or proposed Income Tax
Regulations promulgated under the Code, as such regulations may be amended from
time to time (including corresponding provisions of succeeding regulations).
"SELLER CLOSING DOCUMENTS" shall have the meaning set forth in Section 4.2.
"SURVIVAL TERMINATION DATE" shall have the meaning set forth in Section
11.1.
"SURVEY" shall mean the Urban ALTA/ACSM Land Title Survey of the Property
by WSB & Associates, Project No. 1192.00, dated October 8, 1999.
"TAKING" shall mean a taking of all or any portion of the Real Property in
condemnation or by exercise of the power of eminent domain or by an agreement in
lieu thereof.
"TENANTS" shall mean tenants, concessionaires, licensees and/or occupants
under the Leases.
"THIRD PARTY CLAIM" shall have the meaning set forth in Section 9.3.
"TITLE COMMITMENT" shall mean the commitment for title insurance No.
59-5012C, issued by the Title Insurer with an effective date of September 30,
1999.
"TITLE COMPANY" shall mean First American Title Insurance Company.
"TITLE POLICY" shall mean, at Purchaser's option (i) an ALTA form of
owner's policy of title insurance or a "marked up" Updated Title Commitment for
the Real Property issued by the Title Company, dated the date and time of
Closing and with policy coverage in the amount of the Purchase Price, insuring
Purchaser as owner of good, marketable and indefeasible fee title to the Real
Property, subject only to the Permitted Exceptions, and containing the same
endorsements as were included in Owner's Policy No. 59-5012C dated as of October
28, 1999 issued by the Title Company to Purchaser in connection with the
execution and delivery of the Option Agreement (the "Optionee's Policy") or (ii)
the Optionee's Policy with (x) a date down endorsement that amends the effective
date of such policy to the date and time of the Closing and (y) an endorsement
that recharacterizes the Optionee's Policy as an ALTA form of owner's policy in
the form required by the preceding clause (i) above.
"TRANSACTIONS" shall mean the transactions contemplated by this Agreement.
1.2 References. All references in this Agreement to particular sections or
articles shall, unless expressly otherwise provided, or unless the context
otherwise requires, be deemed to refer to the specific sections or articles in
this Agreement, and any references to "Exhibit" shall, unless otherwise
specified, refer to one of the exhibits annexed hereto and, by such reference,
be made a part hereof. The words "herein", "hereof", "hereunder", "hereinafter",
"hereinabove" and other words of similar import refer to this Agreement as a
whole and not to any particular section, subsection, paragraph or article
hereof. The words "include", "includes" and "including" shall be deemed in each
case to be followed by the phrase "without limitation".
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1.3 Terms Generally. Definitions in this Agreement apply equally to both
the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms.
ARTICLE II
Sale and Purchase
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2.1 Purchase and Sale Contract. Upon the terms and subject to the
conditions contained herein, at the Closing, Seller shall sell, assign, transfer
and convey to Purchaser, and Purchaser shall purchase from Seller, all of
Seller's right, title and interest in and to the Property, free and clear of all
Liens other than the Permitted Exceptions.
2.2 Purchase Price. The purchase price for the Property (the "PURCHASE
PRICE") shall be the sum of (a) the outstanding principal balance plus all
accrued and unpaid interest, fees and charges thereon, under the terms of the
financing described on EXHIBIT F-1 attached hereto (the "CIGNA FINANCING")
evidenced by that certain Promissory Note (the "CIGNA NOTE") dated as of
November 30, 1995, from Crossroads Shopping Center Trust and First Union Real
Estate Equity and Mortgage Investments to Connecticut General Life Insurance
Company ("CIGNA"), plus (b) the outstanding principal balance plus all accrued
and unpaid interest, fees and charges thereon, under the terms of the financing
described on EXHIBIT F-2 attached hereto (the "SECOND MORTGAGE FINANCING")
evidenced by that certain Promissory Note dated as of September 30, 1999, from
Seller to St. Cloud Funding L.L.C.(the "SECOND LENDER"), plus (c) Two Million
and No/100 Dollars ($2,000,000.00) (the "CASH PORTION"), minus (d) the Option
Fee. The Purchase Price shall be payable as follows:
(i) On the Execution Date, Seller and Purchaser shall execute the escrow
agreement in the form of EXHIBIT B attached hereto (the "XXXXXXX MONEY ESCROW")
and Purchaser shall deposit with the Escrow Agent the sum of Two Hundred
Thousand and No/100 Dollars ($200,000.00) (which sum, together with all interest
and earnings thereon is hereinafter referred to as the "XXXXXXX MONEY") to be
held as an xxxxxxx money deposit pursuant to the Xxxxxxx Money Escrow. All funds
deposited in the Xxxxxxx Money Escrow shall be invested in interest-bearing or
money market accounts. Upon and subject to the occurrence of the Closing, all
funds on deposit in the Xxxxxxx Money Escrow shall be transferred to Seller,
such amount to be applied in partial payment of the Cash Payment. The parties
shall issue instructions to the Escrow Agent to effectuate the provisions of
this Section. The provisions of this Section shall survive the termination of
this Agreement, however caused.
(ii) On the Closing Date, Purchaser shall deposit the Cash Portion, less
the amount of the Option Fee, less the amount of the Xxxxxxx Money, plus or
minus applicable prorations described below, in escrow under the terms of the
Closing Escrow Agreement in immediate, same-day federal funds (all or any part
of which may be the proceeds of a loan) wired for credit into such account as
Escrow Agent may designate on the Closing Date and Purchaser shall accept title
to the Property subject to the CIGNA Financing, the Second Mortgage Financing
and the Permitted Exceptions.
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ARTICLE III
Title Insurance and Survey
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3.1 Delivery of Updated Title Commitment and Updated Survey. Purchaser has
received (i) the Title Commitment, (ii) the Survey, (iii) an update of the Title
Commitment to a current date (the "Updated Commitment" and (iv) an update of the
Survey to a current date, certified to the Title Company and Purchaser (the
"Updated Survey").
3.2 Title Policy. On the Execution Date, Seller shall cause the Title
Company to agree in writing to issue the Title Policy to Purchaser on the
Closing Date in the form required hereby. The Title Company's agreement to issue
the Title Policy on the Closing Date shall be conditioned solely upon the Title
Company's receipt of (i) written or telephonic confirmation from (x) Seller
authorizing the Title Company to release to Purchaser and record (as applicable)
the Seller's Documents that the Title Company will hold under the Closing Escrow
Agreement, (y) Purchaser authorizing the Title Company to release to Seller the
Cash Portion and the Purchaser Documents that the Title Company will hold under
the Closing Escrow Agreement and (z) Seller and Purchaser authorizing the Title
Company to make the deliveries and disbursements described in the Closing Escrow
Agreement and (ii) the premium for the Title Policy. Seller shall deliver to the
Title Company the instruments, documents or certificates as are customarily
required by the Title Company to be executed or provided by Seller as a
condition to the issuance of the Title Policy at the Closing; provided, however,
if the Title Company shall reasonably require Seller to deliver a so-called "gap
undertaking" in connection with the issuance of the Title Policy, the foregoing
covenant shall only obligate Seller to indemnify the Title Company under such
"gap undertaking" for loss or damage that the Title Company may sustain solely
by reason of any Defects.
ARTICLE IV
Closing
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4.1 Closing. The closing of the Transactions (the "CLOSING") shall be
closed at the offices of Xxxx, Gerber & Xxxxxxxxx, Xxx Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, through the escrow established pursuant to the Closing
Escrow Agreement and shall commence at 10:00 a.m., local time, on April 26, 2000
(the "CLOSING DATE").
4.2 Seller Closing Documents. On the Execution Date, Seller shall deliver,
or cause to be delivered into escrow ( under the terms of the Closing Escrow
Agreement) the following documents (collectively, the "SELLER CLOSING
DOCUMENTS"), duly executed by Seller and the other parties thereto (other than
Purchaser) and in form and substance reasonably acceptable to Purchaser and to
Seller unless the form thereof is attached hereto:
(a) Special Warranty Deed in proper statutory form for recording, so as to
convey the entire fee simple estate of Seller in the Land and Improvements and
all other items of Real Property to Purchaser.
(b) Assignment and assumption of all of Seller's right, title and interest
under the leases, all of which, to the extent the same relate to Leases or
memoranda thereof which have been recorded in appropriate land records, shall be
in form suitable for recording.
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(c) Assignment and assumption of all of Seller's right, title and interest
in the REA with respect to the Property in form suitable for recording.
(d) Assignment and assumption of all of Seller's right, title and interest
in and to the Contracts, to the extent assignable.
(e) Bills of Sale sufficient to transfer to Purchaser all of Seller's
right, title and interest in and to the Personalty.
(f) An affidavit of Seller stating its U.S. taxpayer identification number
and that it is a "United States person", as defined by Sections 1445(f)(3) and
7701(b) of the Code.
(g) Such certificates as Purchaser or the Title Company may reasonably
request as to the authorization on the part of Seller of the execution, delivery
and performance of this Agreement and the authority of the Persons executing and
delivering this Agreement and the Seller Closing Documents on behalf of Seller.
(h) To the extent any of the following notices have not already been
delivered in connection with the closing of the Second Financing, written
notices prepared by Purchaser (i) to the Parties to the REA advising them of the
change of ownership and directing them to pay all charges under the REA as
directed by Purchaser; (ii) to the Tenants advising them of the change of
ownership and directing them to pay Rent and other charges under their
respective Leases as directed by Purchaser; and (iii) to each Party to each of
the Contracts advising of the transfer and assignment of Seller's interest in
the Contracts to Purchaser and directing that future inquiries be made directly
to Purchaser.
(i) Any instruments, documents or certificates required by applicable law
to be executed by Seller with respect to any state, county or local transfer
taxes applicable to the conveyance of the Property pursuant to this Agreement.
(j) Such other documents, instruments or agreements which Seller is
required to deliver to Purchaser pursuant to the other provisions of this
Agreement or which Purchaser reasonably may deem necessary or desirable in order
to consummate the Transactions or to better vest in Purchaser title to the
Property; provided, however, that any such other document, instrument or
agreement which Purchaser reasonably deems necessary or desirable shall not
impose upon Seller any cost, obligation or liability other than an obligation or
liability expressly imposed upon Seller pursuant to the terms of this Agreement
or pursuant to the terms of the other Seller Closing Documents specified in this
Section 4.2.
4.3 Purchaser Closing Documents. On the Execution Date, Purchaser shall
deliver into escrow (under the terms of the Closing Escrow Agreement) the
following documents (herein referred to collectively as the "PURCHASER CLOSING
DOCUMENTS") duly executed by an authorized officer on behalf of Purchaser and
the other parties thereto (other than Seller) and in form and substance
reasonably acceptable to Seller and to Purchaser unless the form thereof is
attached hereto:
(a) Executed counterparts of the documents delivered by Seller under
Sections 4.2(b), (c) and (d).
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(b) Any instruments, documents or certificates required by applicable law
to be executed by Purchaser with respect to any state, county or local transfer
taxes applicable to the conveyance of the Property pursuant to this Agreement.
(c) Such other documents, instruments or agreements which Purchaser may be
required to deliver to Seller pursuant to the other provisions of this Agreement
or which Seller reasonably may deem necessary or desirable to consummate the
Transactions; provided, however, that any such other document, instrument or
agreement which Seller reasonably deems necessary or desirable shall not impose
upon Purchaser any obligation or liability other than an obligation or liability
expressly imposed upon Purchaser pursuant to the terms of this Agreement or
pursuant to the terms of the other Purchaser Closing Documents specified in this
Section 4.3.
4.4 Joint Deliveries. On the Execution Date, Seller and Purchaser shall
jointly execute and deliver into escrow (under the Closing Escrow Agreement) a
Closing Statement with respect to the Transactions.
4.5 Entity Acquisition. Intentionally Omitted.
4.6 Transaction Costs. Any and all costs and expenses in connection with
transfer of the Property (or the equity interests in Seller, as the case may
be), including title insurance premiums and search charges, the cost of updates
to the Survey, transfer taxes, recording charges. the cost of the escrow created
pursuant to the Xxxxxxx Money Escrow and the cost of the escrow created pursuant
to the Closing Escrow Agreement, including any "New York Style" escrow fees,
shall be divided equally between Seller and Purchaser.
4.7 Other Costs. Purchaser and Seller shall each pay their respective legal
fees incurred in connection with the drafting and negotiation of this Agreement
and the Closing of the Transactions.
ARTICLE V
Prorations and Adjustments
--------------------------
There shall be no proration, reproration, allocation or adjustment of
costs, expenses or income with respect to the Property, Seller and Purchaser
acknowledge and agree that all income, rents and payments generated from the
Property after payment of all expenses for the Property for any period prior to
the Closing Date is required to be paid to the holder of the Second Mortgage
Financing subject to the terms of the Second Mortgage Financing and will not be
credited or paid to either Seller or Purchaser for any period prior to the
Closing Date. Seller and Purchaser further acknowledge and agree that all
income, rents and payments generated from the Property for any period after the
Closing Date shall be paid to Purchaser and Purchaser shall be responsible for
payment of all expenses of the Property arising after the Closing Date.
ARTICLE VI
Representations and Warranties
------------------------------
6.1 Seller's Representations and Warranties. Seller represents and First
Union Real Estate Equity and Mortgage Investments (the "BENEFICIARY") represents
and warrants to Purchaser as follows:
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(a) Seller is a trust pursuant to that certain Trust Declaration of the
Crossroads Shopping Center Trust dated November 2, 1990, duly formed and validly
existing with full power and authority to execute, deliver and perform this
Agreement. The Beneficiary is the sole beneficiary of Seller and is a business
trust duly formed, validly existing and in good standing under the laws of the
State of Ohio with full power and authority to direct Seller to execute, deliver
and perform this Agreement.
(b) The execution, delivery and performance of this Agreement by Seller
have been duly and validly authorized by all necessary action on the part of
Seller and the Beneficiary. This Agreement and the Seller Closing Documents have
been duly executed and delivered by Seller. This Agreement constitutes, and when
so executed and delivered the Seller Closing Documents will constitute, the
legal, valid and binding obligations of Seller, enforceable against Seller in
accordance with their respective terms.
(c) None of the execution, delivery or performance of this Agreement or the
Seller Closing Documents by Seller does or will, with or without the giving of
notice, lapse of time or both, violate, conflict with, constitute a default,
result in a loss of rights, acceleration of payments due or creation of any Lien
upon the Property or require the approval or waiver of or filing with any Person
(including any governmental body, agency or instrumentality) under (i) the
organizational documents of Seller or the Beneficiary or any agreement,
instrument or other document to which Seller or the Beneficiary is a party or by
which it is bound or (ii) any judgment, decree, order, statute, injunction,
rule, regulation or the like of a governmental unit applicable to Seller or the
Beneficiary.
(d) No broker, finder, investment banker or other person engaged directly
by Seller or the Beneficiary is entitled to any brokerage, finder's or other fee
or commission in connection with the Transactions based upon arrangements made
by Seller or the Beneficiary.
6.2 Purchaser Representations and Warranties. Purchaser represents and
warrants to Seller as follows:
(a) Purchaser is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware with full
right, power and authority to execute, deliver and perform this Agreement.
(b) The execution, delivery and performance by Purchaser of this Agreement
have been duly and validly authorized by all requisite action on the part of
Purchaser. This Agreement and the Purchaser Closing Documents have been duly
executed and delivered by Purchaser. This Agreement constitutes, and when so
executed and delivered the Purchaser Closing Documents will constitute the
legal, valid and binding obligations of Purchaser, enforceable against it in
accordance with their terms.
(c) None of the execution, delivery or performance of this Agreement or the
Purchaser Closing Documents by Purchaser does or will, with or without the
giving of notice, lapse of time or both, violate, conflict with, constitute a
default or result in a loss of rights under or require the approval or waiver of
or filing with any Person (including any governmental body, agency or
instrumentality) under (i) the organizational documents of Purchaser or any
agreement, instrument
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or other document to which Purchaser is a party or by which Purchaser is bound
or (ii) any judgment, decree, order, statute, injunction, rule, regulation or
the like of a governmental unit applicable to Purchaser.
(d) No broker, finder, investment banker or other person is entitled to any
brokerage, finder's or other fee or commission in connection with the
Transactions based upon arrangements made by or on behalf of Purchaser.
ARTICLE VII
Conditions to Closing
---------------------
7.1 Conditions to Seller's Obligations. Seller's obligation to close is
subject to satisfaction of each of the following conditions (any of which may be
waived by Seller in its sole discretion):
(a) Receipt of Cash Portion and Purchaser Documents. On the Closing Date,
the Title Company shall have confirmed to Seller that it is unconditionally
prepared and ready, willing and able to immediately disburse and deliver to
Seller the Cash Portion and the Purchaser Documents.
(b) Accuracy of Representations and Warranties. The representations and
warranties made by Purchaser in this Agreement shall be true and complete in all
material respects on and as of the Closing Date (other than with respect to
events or developments permitted hereunder or as to which Seller has otherwise
consented in writing).
(c) Release of CIGNA Financing. The CIGNA Financing shall be paid off or,
if the CIGNA Financing is assumed by Purchaser, then CIGNA shall have delivered
to Seller a release of Seller from the recourse obligations of Seller under the
CIGNA Financing accruing from and after the Closing Date, other than those
obligations of Seller, if any, arising under the CIGNA Financing that would
continue after a payoff of the CIGNA Financing, including environmental
indemnities.
7.2 Conditions to Purchaser's Obligations. Purchaser's obligation to close
is subject to satisfaction of each of the following conditions (any of which may
be waived by Purchaser in its sole discretion):
(a) Receipt of Seller Documents. On the Closing Date, the Title Company
shall have confirmed to Purchaser that it is unconditionally prepared and ready,
willing and able to immediately to record or deliver to Purchaser (as the case
may be) the Seller Documents.
(b) Accuracy of Representation and Warranties. The representations and
warranties made by Seller in this Agreement shall be true and complete in all
material respects on and as of the Closing Date (other than with respect to
events or developments permitted hereunder or as to which Purchaser has
otherwise consented in writing).
(c) Issuance of Title Policy. The conditions precedent to the Title
Company's agreement to issue the Title Policy pursuant to Section 3.2 of this
Agreement shall have occurred or been satisfied.
12
ARTICLE VIII
Additional Covenants
--------------------
8.1 Conduct of Business Pending Closing. From the date hereof until the
Closing, Seller shall (a) use reasonable efforts to maintain, for the benefit of
Purchaser following the Closing, the goodwill of Tenants, prospective tenants,
vendors and other parties having business relations with Seller; (b) pay its
debts (or in good faith contest the same) and perform its obligations as they
become due; (c) use reasonable efforts to maintain the Property in the same
manner and condition that exists on the date hereof, as such condition shall be
altered by reason of Casualty, Taking and/or normal wear and tear; (d) without
the express written consent of Purchaser, not (i) sell, transfer, exchange,
further encumber or grant interests (including easements) in the Property or any
part thereof or engage in negotiations or discussions with, or otherwise solicit
or assist, any third party relating to the acquisition by such third party of
the Property or the equity interests in Seller, and (ii) otherwise take any
action which could or would render inaccurate any of the representations or
warranties made by Seller in this Agreement; and (e) use reasonable efforts to
otherwise operate the Property in the ordinary course consistent with current
practice.
8.2 Bulk Sales. Intentionally Omitted.
8.3 Record Retention. To the extent any of the Books and Records were not
delivered to Second Lender or Manager at the time of the Second Mortgage
Financing, after the Closing, Purchaser shall provide Seller with reasonable
access to the Books and Records and, at Seller's cost, copies of all or any
portion thereof. Purchaser either shall retain the Books and Records until the
third anniversary of the date hereof or notify Seller of its desire to dispose
of the Books and Records and turn them over to Seller if Seller so requests.
8.4 Publicity. In no event shall either Seller or Purchaser issue any press
release or otherwise disclose any non-public information regarding this
Agreement or the Transactions unless the other party has consented thereto in
writing (and Seller and Purchaser agree not unreasonably to withhold or delay
such consent) and to the form and substance of any such statement or disclosure;
provided, however, that nothing herein shall be deemed to limit or impair in any
way any party's ability to disclose the details of or information concerning
this Agreement, the Transactions or the Property to such party's attorneys,
accountants or other advisors or to the extent such party reasonably deems
necessary or desirable pursuant to any court or governmental order or applicable
securities laws or regulations financial reporting requirements, to obtain the
Contract Party Consents or financing for the acquisition of the Property and to
assess the Property in connection with Purchaser's due diligence examination
(including contacting Tenants and other Parties). Further, either party may
disclose any information regarding this Agreement or the Transactions to its
direct or indirect constituent partners, members, shareholders or beneficial
owners, as the case may be (and to counsel for such constituent partners,
members, shareholders and beneficial owners) and as otherwise necessary to
comply with the terms of this Agreement. Any disclosure by a party's advisors or
direct or indirect constituent partners, members, shareholders or beneficial
owners shall be
13
deemed a breach hereof by such party. If for any reason this Transaction is not
consummated, Purchaser will promptly return to Seller all originals and copies
of documents, reports and financial and other information relating to the
Property and to Seller which Seller has furnished to Purchaser. The obligations
of Seller and Purchaser under this Section 8.4 shall survive the termination
hereof, however caused.
8.5 Further Assurances. Each of Seller and Purchaser agree, at any time and
from time to time after the Closing, to execute, acknowledge where appropriate
and deliver such further instruments and other documents (and to bear its own
costs and expenses incidental thereto) and to take such other actions as the
other of them may reasonably request in order to carry out the intent and
purpose of this Agreement; provided, however, that neither Seller nor Purchaser
shall be obligated, pursuant to this Section 8.5 to incur any expense of a
material nature and/or to incur any material risk, liability or obligations in
addition to those set forth in this Agreement and/or its respective Closing
Documents.
ARTICLE IX
Indemnification
---------------
9.1 Indemnification by Seller. From and after the Closing, Seller shall
indemnify, defend and hold harmless Purchaser and its shareholders, directors,
officers, members, partners, employees, representatives and agents, and their
respective successors and assigns (collectively, the "INDEMNIFIED PURCHASER
PERSONS") from and against any Losses incurred or suffered by any Indemnified
Purchaser Person that results from, relates to or arises out of (a) the breach
or inaccuracy of any representation or warranty made by Seller in this Agreement
or the Seller Closing Documents, or (b) claims made by any Tenant or Anchor
under the Leases, any Party to the REA under the REA, or by any Party under
those Contracts assigned to Purchaser, that relate to obligations or liabilities
that accrued or relate to the period prior to October 28, 1999 (the
"INDEMNIFICATION DATE").
9.2 Indemnification by Purchaser. From and after the Closing, Purchaser
shall indemnify, defend and hold harmless Seller and its shareholders,
directors, trustees, beneficiaries, officers, members, partners employees and
agents, and their respective successors and assigns (collectively, the
"INDEMNIFIED SELLER PERSONS") from and against any Losses incurred or suffered
by any Indemnified Seller Person that results from, relates to or arises out of
(a) the breach or inaccuracy of any representation or warranty made by Purchaser
in this Agreement or the Purchaser Closing Documents, (b) claims made by any
Tenant or Anchor under the Leases, any Party to the REA under the REA, or by any
Party under those Contracts assigned to Purchaser, that relate to obligations or
liabilities that accrued or relate to the period on or subsequent to the
Indemnification Date or (c) any liability of Seller, the Beneficiary or First
Union Management, Inc. (collectively "MORTGAGOR") for the non-recourse carve out
obligations of Mortgagor under the terms of Paragraph 15 of the CIGNA Note and
Section 40 of the Mortgage, Security Agreement and Fixture Financing Statement,
dated as of November 15, 1995, as amended, executed by Mortgagor, that relate to
or are based on (1) acts or omissions occurring on or after the Closing Date or
(2) obligations or liabilities that accrued, or relate to the period beginning,
on or subsequent to the Closing Date, unless the condition set forth in Section
7.1(c) of this Agreement is satisfied on or before the Closing Date.
14
9.3 Indemnification Procedure.
(a) The indemnified party (the "INDEMNIFIED PARTY") shall give the
indemnifying party (the "INDEMNIFYING PARTY") prompt notice of any Losses
incurred (or likely to be incurred) by the Indemnified Party with respect to any
claim or assertion of claims by a third party, including, without limitation,
CIGNA ("THIRD PARTY CLAIM") for which indemnification is available hereunder and
the Indemnifying Party may (i) prior to the commencement of any proceedings in
connection with such Losses, undertake the negotiation of any resolution of the
dispute relating to such Losses, including any settlement or release, or (ii)
undertake the defense of any proceeding (including any alternative dispute
resolution proceeding) regarding such Losses by selecting legal counsel who
shall be reasonably acceptable to the Indemnified Party.
(b) Provided the Indemnifying Party shall have undertaken the Indemnified
Party's defense of a Third Party Claim with legal counsel reasonably acceptable
to the Indemnified Party, and shall have so notified the Indemnified Party, the
Indemnified Party shall be entitled to participate at its own expense in the
aforesaid negotiation or defense of any claim relating to such Losses (subject
to reimbursement to the limited extent provided in Section 9.3(e)), but such
negotiations or defense shall be controlled by counsel to the Indemnifying
Party.
(c) The Indemnifying Party shall not be liable for payments relating to the
resolution of any dispute or any settlement of any litigation or proceeding
effected without the written consent of the Indemnifying Party, which consent
shall not be unreasonably withheld. The Indemnifying Party shall not, without
the Indemnified Party's written consent, resolve any dispute or settle or
compromise any claim regarding Losses from a Third Party Claim or consent to
entry of any judgment which would impose an injunction or other equitable relief
upon the Indemnified Party or which does not include as an unconditional term
thereof the release by the claimant or the plaintiff of the Indemnified Party
from all liability in respect of any such Losses.
(d) Each party hereto agrees to give the other party prompt notice of any
Losses (or possible Losses) asserted against it which might be Losses for which
indemnity could be sought against the other party, but the failure to give such
notice shall not release the Indemnifying Party of its obligations under this
Section 9.3, expect to the extent of the actual harm suffered thereby.
(e) In the event the Indemnifying Party fails to timely undertake
negotiation of any dispute or defend, contest or otherwise protect against any
claim or suit with respect to a Third Party Claim, and to so notify the
Indemnified Party, the Indemnified Party may, but will not be obligated to,
defend, contest or otherwise protect against the same, and make any compromise
or settlement thereof and recover the entire costs thereof from the Indemnifying
Party, including reasonable attorneys' and experts' fees, disbursements and all
amounts paid as a result of such claim or suit or the compromise or settlement
thereof; provided, however, that if the Indemnifying Party undertakes
negotiation of any dispute and the defense of such matter in accordance with and
subject to the above terms of this Section 9.3, the Indemnified Party shall not
be entitled to recover from the Indemnifying Party for its costs incurred
thereafter in connection therewith other than the reasonable costs of
investigation undertaken by the Indemnified Party and reasonable costs of
providing assistance. The Indemnified Party shall cooperate and provide such
assistance as the Indemnifying Party may reasonably request in connection with
the negotiation of any dispute and the defense of the matter subject to
15
indemnification and the Indemnifying Party shall reimburse the Indemnified
Party's reasonable costs incurred thereafter in connection with such cooperation
and assistance.
ARTICLE X
Condemnation and Destruction
----------------------------
10.1 Casualty or Condemnation in General.
(a) If prior to the Closing Date the Property shall be the subject of a
Taking or Casualty, Seller shall promptly inform Purchaser of same.
(b) If prior to the Closing Date the Property shall be the subject of a
Taking or a Casualty this Agreement shall remain in full force and effect, in
which event Seller (i) shall transfer and assign to Purchaser, at the Closing,
its full right, title and interest in and to any insurance proceeds (and shall
pay in cash to Purchaser all deductibles owing in respect thereof) or
condemnation awards with respect thereto, and shall cooperate in all reasonable
respects with Purchaser, at Purchaser's sole cost and expense, in connection
with the collection thereof, to the extent not collected at the Closing, and
(ii) to the extent any insurance proceeds or condemnation awards shall have been
received by Seller prior to the Closing, remit to Purchaser the full amount
thereof so collected, less, in each such case, (A) reasonable costs of
collection thereof (other than the cost of deductibles), and (B) amounts, if
any, applied by Seller prior to Closing to the preservation, repair or
restoration of the Property.
10.2 Adjustment of Claims and Condemnation Proceedings. If a Taking or
Casualty shall occur, Seller shall initiate all actions required to adjust,
compromise and collect the awards payable by the condemning authority, or the
proceeds payable under the applicable policy or policies of casualty insurance.
Purchaser shall have the right (but not the obligation) to participate with
Seller in the initiation of all such actions and, in any event, Seller shall
consult with, and keep Purchaser advised of, Seller's progress in connection
therewith. Seller shall not agree to any settlement of the awards or insurance
proceeds payable in connection with any such Taking or Casualty (or enter into
any agreement in lieu of a Taking) without Purchaser's approval, which approval
shall not be unreasonably withheld or delayed.
ARTICLE XI
Miscellaneous
-------------
11.1 Survival. Notwithstanding anything to the contrary contained in this
Agreement: (a) the representations and warranties contained herein or the
Closing Documents, including the indemnities to the extent that they relate
thereto, shall survive Closing only for a period of one (1) year after the
Closing Date except as to Losses of which written notice has been given prior to
the expiration of such one (1) year period in accordance with the provisions of
this Agreement; (b) the indemnification obligations set forth in Section 9.1(b)
and Section 9.2(b) shall survive the Closing for a period of two (2) years after
the Closing; and (c) the indemnification obligations set forth in Section 9.2(c)
shall survive the Closing and continue until the earlier of the date upon which
(i) the CIGNA Financing is repaid and satisfied in full
16
and released of record or (ii) a release of the type described in Section 7.1(c)
of this Agreement is executed and delivered by CIGNA to Seller.
11.2 Notices. All elections, notices and other communications to be given
hereunder by either party to the other shall be in writing and will be effective
(a) immediately upon delivery in person or by facsimile, provided delivery is
made during regular business hours; or (b) one (1) business day after deposit
for overnight delivery with a nationally recognized commercial courier or
overnight delivery service, provided delivery is made during regular business
hours or receipt is acknowledged by a person reasonably believed by the
delivering party to be employed by the recipient; or (c) three (3) days after
deposit with the United State Postal Service, certified mail, return receipt
requested, postage prepaid. All notices shall be addressed as follows:
If to Seller: Crossroads Shopping Center Trust
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Fax: (000) 000-0000
with a copy to: Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
If to Purchaser: St. Cloud Mall L.L.C.
c/o General Growth Properties, Inc.
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxx
Fax: (000) 000-0000
with a copy to: Xxxx, Xxxxxx & Xxxxxxxxx
Two X. XxXxxxx Street
21st Floor
Chicago, Illinois 60602
Attention: Xxxxxx X. Xxxxxxxxxx
Fax: (000) 000-0000
or at such other address as either party may designate to the other by written
notice in the manner provided.
11.3 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute a single document when at least one counter-part has been executed
and delivered by each party hereto.
11.4 Amendments. Except as otherwise provided herein, this Agreement may
not be changed, modified, supplemented or terminated, except by an instrument
executed by the party hereto which is or will be affected by the terms of such
change, modification, supplement or termination.
17
11.5 Waiver. Each party shall have the right exercisable in its sole and
absolute discretion, but under no circumstances shall be obligated, to waive or
defer compliance by any other party with its obligations hereunder or to waive
satisfaction of any conditions contained herein for its benefit. No waiver by
any party of a breach of any covenant or a failure to satisfy any condition
shall be deemed a waiver of any other or subsequent breach or failure to satisfy
any other condition. All waivers of any term, breach or condition hereof must be
in writing.
11.6 Successors and Assigns. Subject to the provisions of Section 11.10,
the terms, covenants, agreements, conditions, representations and warranties
contained in this Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and assigns.
11.7 Third Party Beneficiaries. The provisions of this Agreement are made
for the benefit of the parties hereto (and the Indemnified Purchaser Persons and
the Indemnified Seller Persons with respect to Sections 9.1 and 9.2), and their
respective successors in interest and assigns and are not intended for, and may
not be enforced by, any other person or entity.
11.8 Partial Invalidity. If any term or provision of this Agreement or
the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby and each term
and provision of this Agreement shall be valid and enforced to the fullest
extent permitted by law.
11.9 Governing Law. This Agreement has been made pursuant to and shall be
governed
by the laws of the State of Minnesota (without regard to conflicts of law
rules).
11.10 Assignment. This Agreement may not be assigned or delegated by any
party without the written consent of the other except that Purchaser may assign
this Agreement to an Affiliate of Purchaser, it being acknowledged and agreed by
Purchaser that no such assignment shall relieve Purchaser of its obligations
under this Agreement.
11.11 Headings; Exhibits. The headings or captions of the various Articles
and Sections of this Agreement have been inserted solely for purposes of
convenience, are not part of this Agreement and shall not be deemed in any
manner to modify, explain, expand or restrict any of the provisions of this
Agreement.
11.12 Gender and Number. Words of any gender shall include the other gender
and the neuter. Whenever the singular is used, the same shall include the plural
wherever appropriate, and whenever the plural is used, the same also shall
include the singular where appropriate.
11.13 Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes any
prior written or oral understandings and/or agreement among them with respect
thereto.
18
11.14 Costs of Enforcement. In the event that any action is brought by any
party or parties to this Agreement against any other party or parties to enforce
rights under this Agreement, the prevailing party's or parties' costs in such
action, including reasonable attorneys' fees, shall be paid by the other party
or parties. Any amounts owing hereunder which are not paid when due shall bear
interest at the per annum rate equal to the prime rate of Bank of America
Illinois, N.A. (or any successor), as the same may change from time to time,
plus four percent.
11.15 Time of the Essence. Time is of the essence with regard to each
provision of this Agreement. Without limiting the generality of the foregoing
sentence, Seller and Purchaser acknowledge and agree that (i) the time frames
set forth in this Agreement are a material element of this transaction, (ii)
neither party would have entered into this Agreement in the absence of such
agreed upon time frames and (iii) the provisions of this Section 11.15 are an
integral part of this Agreement. If the final date of any period provided for
herein for the performance of an obligation or for the taking of any action
falls on a Saturday, Sunday or banking holiday, then the time of that period
shall be deemed extended to the next day which is not a Sunday, Saturday or
banking holiday. Each and every day described herein shall be deemed to end at
5:00 p.m. Central Standard Time.
11.16 As-Is. Acknowledging the prior use of the Property and Purchaser's
opportunity to inspect the Property, subject to the express representations,
warranties and covenants of Seller set forth in this Agreement and in the Seller
Closing Documents, Purchaser agrees to take the Property "AS IS" with all faults
and conditions thereon.
11.17 1031 Exchange. At Seller's option, Purchaser agrees to cooperate with
Seller in closing the sale of the Property as a like-kind exchange under Section
1031 of the Code. In the event that Seller elects to effect a like-kind exchange
under Section 1031 of the Code, Seller shall provide written notice of such
election to Purchaser not less than ten (10) days prior to the Closing Date. No
election by Seller under this Section 11.17 shall extend the Closing Date. Such
cooperation shall include the substitution by Seller of an intermediary (the
"INTERMEDIARY") to act in place of Seller with respect to Seller's obligations
to sell the Property. If Seller so elects, Purchaser agrees to accept the
Property and all other required performance from the Intermediary and to render
its performance of all its obligations to the Intermediary. Purchaser agrees
that performance by the Intermediary will be treated as performance by Seller
and Seller agrees that Purchaser's performance to the Intermediary will be
treated as performance to Seller. Notwithstanding the foregoing, (a) Seller
shall remain liable to Purchaser for the performance of the obligations of
"Seller" under this Agreement, (b) Purchaser may proceed directly against Seller
in the event of any breach of default under this Agreement without the need to
join the Intermediary as a party to any action against Seller, and (c) all costs
and expenses (other than Purchaser's legal costs and expenses) solely
attributable to closing the sale of the Property as a like-kind exchange shall
be born exclusively by Seller. Seller shall indemnify and hold Purchaser
harmless from and against any and all liabilities, claims, losses, damages,
costs and expenses (including reasonable attorneys' fees and court costs and
litigation expenses) suffered or incurred by Purchaser as a result of or in
connection with the transfer of the Property as a like-kind exchange under
Section 1031 of the Code.
19
11.18 Trustee Exculpation. Notwithstanding anything contained herein to the
contrary, this Agreement is made and executed on behalf of the Crossroads
Shopping Center Trust dated November 2, 1990, by its trustees, and none of the
trustees (or any additional successor trustee) hereafter appointed shall have
any liability in his or her personal or individual capacity, all such personal
liability of such trustees being expressly waived by Purchaser.
ARTICLE XII
Default and Remedies
--------------------
12.1 Seller's Default. If this transaction fails to close on or before
the Closing Date as a result of Seller's default (all conditions to Seller's
obligations having been satisfied or waived), the Xxxxxxx Money shall be
returned to Purchaser and Purchaser shall be entitled to such remedies as may be
available at law and in equity, including without limitation, the remedy of
specific performance.
12.2 Purchaser's Default. If this transaction fails to close on or before
the Closing Date due to the default of Purchaser (all conditions to Purchaser's
obligations having been satisfied or waived), then Seller shall be entitled to
such remedies as may be available at law and in equity, including, without
limitation, the remedy of specific performance.
20
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto on the day and year first above written.
SELLER: PURCHASER:
CROSSROADS SHOPPING CENTER ST. CLOUD MALL L.L.C.,
TRUST a Delaware limited liability company
By: ST. CLOUD MALL, INC.,
a Delaware corporation,
By: /s/ Xxxxxx X. Xxxxxxxx its sole member
--------------------------------
Xxxxxx X. Xxxxxxxx, as Trustee,
under Declaration of Trust dated
November 2, 1990
By: /s/ Xxxx Xxxxx
----------------------
Name: Xxxx Xxxxx
--------------------
Title: Vice President
--------------------
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx, as Trustee.
under Declaration of Trust dated
November 2, 1990
