SALE AGREEMENT
MALL OF MEMPHIS
MEMPHIS, TENNESSEE
A G R E E M E N T
THIS AGREEMENT made as of the 8th day of August, 1995, by and between
MALL OF MEMPHIS ASSOCIATES, a Tennessee limited partnership
("Selling Partner"), and CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XI, an
Illinois limited partnership ("Buyer").
W I T N E S S E T H, T H A T:
WHEREAS, Mall of Memphis Associates, an Illinois general partnership
(the
"Partnership") is the owner of the "Business Property" (as hereinafter
defined), which consists principally of a regional shopping mall located in
Memphis, Tennessee, known as the Mall of Memphis;
WHEREAS, in accordance with that certain agreement captioned
"Articles of General Partnership of Mall of Memphis Associates (An Illinois
General Partnership)" made and entered into as of August 3, 1981, by and
between Selling Partner and Buyer (as amended, the "Partnership
Agreement"), Selling Partner is presently a general partner in the
Partnership, owning a thirty-six and ninety-four one hundredths percent
(36.94%) partnership interest therein;
WHEREAS, Buyer desires to purchase Selling Partner's partnership
interest on the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the respective
undertakings of the parties hereinafter set forth, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, it is
hereby agreed:
ARTICLE I - AGREEMENT TO SELL
Section 1.1. Sale of Partnership Interest. On the terms and
conditions hereinafter set forth, Selling Partner shall sell to Buyer, and
Buyer shall purchase from Selling Partner the entire 36.94% partnership
interest of Selling Partner in the Partnership including the entire 36.94%
interest of Selling Partner in the capital and the profits and losses of
the Partnership, and any other interests, rights or benefits that Selling
Partner may have in the Partnership (the Partnership interest and any other
interests, rights or benefits of Selling Partner in the Partnership to be
purchased by Buyer as aforesaid being herein collectively called the
"Subject Partnership Interest").
Section 1.2. Certain Definitions. As used herein, the following
terms shall have the following meanings:
A. "Business Property" means, collectively, the "Land", the
"Improvements", the "Personal Property" and the "Intangible Property".
(1) "Land" means that certain real property described in
Exhibit "A", together with all and singular the tenements, hereditaments,
easements, rights-of-way and appurtenances belonging or in anywise
appertaining to the same.
(2) "Improvements" means all improvements, structures and fixtures
now or on the "Closing Date" (as hereinafter defined) located on the Land;
that portion of the Improvements consisting of tenant improvements (i.e.,
improvements consisting of finish work to interior space of the
Improvements to suit the proposed occupant of such space) is herein called
"Tenant Improvements"; the balance of the Improvements is herein called the
"Buildings".
(3) "Personal Property" means all tangible personal property now or
on the Closing Date located on or about the Land or Improvements or
attached or appurtenant thereto or used in connection with the operation
thereof, but excluding tangible personal property owned by tenants of the
Buildings under "Tenant Leases" (as hereinafter defined) in their capacity
as tenants.
(4) "Intangible Property" means all intangible property now or on
the Closing Date owned or held in connection with the Land, the
Improvements or the Personal Property, or any business or businesses now or
hereafter conducted thereon or with the use thereof (other than those
businesses conducted by tenants of the Buildings under Tenant Leases in
their capacity as tenants), including all leases, contract rights and
agreements (including the Tenant Leases and the "Continuing Contracts" (as
hereinafter defined)), building and trade names (including the name "Mall
of Memphis"), business licenses, warranties (including those relating to
construction or fabrication), utility contracts, telephone exchange
numbers, advertising materials, plans and specifications, governmental
approvals and development rights, related to the Land, the Improvements or
the Personal Property or any part thereof.
(5) "Tenant Leases" means the leases described in the rent roll
(the "Rent Roll") attached as Exhibit "B" hereto.
(6) "Continuing Contracts" means the service and equipment leasing
contracts listed and described in Exhibit "C" hereto.
B. "Business Agreement" means any lease, rental agreement, loan
agreement, mortgage, easement, covenant, restriction or other agreement or
instrument at any time or times affecting all or a portion of the Business
Property.
C. "Funds" shall have the meaning ascribed to such term in the
"Closing Procedure Letter" (as hereinafter defined).
D. "Original Partners" means Associates and Carlyle, collectively.
E. "Title Company" means Ticor Title Insurance Company, located at
000 Xxxxx XxXxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000.
ARTICLE II - PURCHASE PRICE
Section 2.1. Amount. The purchase price (the "Purchase Price")
of the Subject Partnership Interest shall be $5,500,000. Additionally,
Seller and Buyer have agreed that Seller is entitled to a proration credit
of $251,030.
Section 2.2. Manner of Payment. The Purchase Price shall be
paid as follows:
A. Down Payment. An amount equal to $500,000 plus the proration
credit of $251,030 for a total amount due of $751,030 shall be paid by
cashier's or certified check or wire transfer on the Closing Date.
B. Purchase Price Financing. An amount equal to $5,000,000 shall
be paid to Selling Partner by Buyer in accordance with the terms of a
promissory note by Buyer in favor of Selling Partner in the form of Exhibit
"D" attached hereto (the "Note"). Buyer's obligations under the Note shall
be secured by a pledge of the Subject Partnership Interest (but no other
portion of Buyer's interest in the Partnership) in the form of Exhibit "E"
attached hereto (the "Security Agreement"). The Note shall be non-recourse
to Buyer; provided, however, that the minimum payments in 1996 and 1997
required under Section 2(a)(ii) (y) and (z) of the Note (as more
particularly set forth in the Note), shall be recourse to Buyer, but not
the to partners of Buyer or in any partnership which is a partner in
Borrower.
ARTICLE III - FINANCING
Section 3.1. Existing Financing.
A. Existing Encumbrances. The Business Property is presently
encumbered by the following mortgages and other security instruments
(individually and collectively, the "Existing Encumbrances"):
(1) that certain deed of trust captioned "DEED OF TRUST, ASSIGNMENT
OF RENTS AND SECURITY AGREEMENT" dated as of December 23, 1982, by the
Partnership, as trustor, in favor of Xxxxxxx X. Xxxxxxx and Xxxx X. Xxxxxx,
as trustee, for the benefit of Teachers Insurance and Annuity Association
of America, a New York corporation ("Teachers"), and recorded in the Land
Records of Shelby County, Tennessee (the "Recorder's Office") on December
29, 1982 under Recorder's No. T7 9982, as amended or supplemented by that
certain document captioned "FIRST SUPPLEMENT TO DEED OF TRUST, ASSIGNMENT
OR RENTS AND SECURITY AGREEMENT, MODIFICATION OF NOTES AND OF ASSIGNMENT OF
LESSOR'S INTEREST IN LEASES" (the "Amendment"), by the Partnership, as
trustor, in favor of Xxxxx X. Xxxxxxx and Xxxx X. Xxxxxx, as trustees, for
the benefit of Teachers; and
(2) that certain assignment captioned "ASSIGNMENT OF LESSOR'S
INTEREST IN LEASES" dated as of December 23, 1982, by and between the
Partnership and Teachers and recorded in the Recorder's Office on December
29, 1982 under Recorder's No. T7 9983, as amended by the Amendment.
B. Existing Notes. The Existing Encumbrances secure the following
promissory notes (the "Existing Notes"):
(1) that certain note captioned "DEED OF TRUST NOTE NO. 1" dated as
of December 23, 1982 in the original principal amount of $32,550,000, made
by the Partnership in favor of Teachers, as amended by the Amendment;
(2) that certain note captioned "DEED OF TRUST NOTE NO. 2" dated as
of December 23, 1982 in the original principal amount of $3,450,000, made
by the Partnership in favor of Teachers, as amended by the Amendment; and
(3) that certain note captioned "TENNESSEE DEED OF TRUST NOTE NO.
3" in the original principal amount of $9,625,000, made by the Partnership
in favor of Teachers.
C. Existing Loan Documents. As used herein, the "Existing Loan
Documents" means, collectively, the Existing Encumbrances and the Existing
Notes.
ARTICLE IV INTENTIONALLY DELETED
ARTICLE V - CLOSING CONFERENCE
The consummation (the "Closing") of the sale and purchase herein
provided shall be conducted by mail on the Closing Date, in accordance with
procedures which shall be mutually agreed upon by the parties hereto.
"Closing Date" means August 8, 1995, or such earlier or later date as shall
be hereafter agreed upon by the parties hereto for the conveyances herein
provided.
Section 5.1. Delivery to Title Company.
A. Items to Be Delivered by Buyer. On or before the Closing Date,
Buyer shall deliver to Title Company:
(1) Down Payment. $751,030 (i.e., $500,000, which amount
constitutes the cash portion of the Purchase Price to be paid on the
Closing Date plus $251,030 as the proration adjustment).
(2) Note. The Note, dated as of the Closing Date and duly executed
by Buyer.
(3) Assignment of Partnership Interest. A counterpart of an
assignment of the Subject Partnership Interest (the "Assignment of
Partnership Interest") in favor of Buyer, dated as of the Closing Date,
duly executed by Buyer and in the form of Exhibit "F" attached hereto.
B. Item to Be Delivered by Selling Partner. On or before the
Closing Date, Selling Partner shall deliver to Title Company a counterpart
of the Assignment of Partnership Interest, dated as of the Closing Date and
duly executed by Selling Partner.
Section 5.2. Instructions to Title Company. The deliveries to
be made under Section 5.1 above shall be made in accordance with and
subject to the letter (the "Closing Procedure Letter") from Buyer and
Selling Partner to Title Company which is being executed concurrently
herewith.
Section 5.3. Delivery to Parties. Upon satisfaction of all the
conditions in the Closing Procedure Letter for delivery of the Funds (other
than the delivery of Buyer's written authorization to close the escrow
under the Closing Procedure Letter) and receipt of written advice by Title
Company that such conditions have been satisfied and that Title Company is
prepared to close the escrow, the following items are to be delivered:
A. Items To Be Delivered by Selling Partner. Selling Partner
shall deliver (or cause to be delivered) to Buyer:
(1) Certification of Non-Foreign Status. A certificate dated as of
the Closing Date, addressed to Buyer, duly executed by Selling Partner
under penalty of perjury, regarding Selling Partner's non-foreign status,
in the form of Exhibit "G" attached hereto.
(2) Closing Certificate. If the Closing Date occurs after the date
of this Agreement, a certificate (the "Closing Certificate"), dated as of
the Closing Date and duly executed by Selling Partner, representing that
the representations and warranties of Selling Partner contained in this
Agreement are true and correct without exception as of the Closing Date as
if made on and as of the Closing Date (or, specifying in reasonable detail
such exceptions, if any, which then exist). Selling Partner shall not take
any action or omit to take any action, which action or omission would
result in any such exception.
(3) Opinion of Selling Partner's Counsel. A due
execution/authority opinion of Selling Partner's counsel, addressed to
Buyer, from the general counsel of Selling Partner, in form and substance
reasonably satisfactory to Buyer, and dated as of the Closing Date.
(4) Right of First Opportunity. A counterpart of an agreement (the
"Right of First Opportunity") in the form of Exhibit "H" attached hereto,
dated as of the Closing Date and duly executed Selling Partner.
(5) Letter Agreement and Exhibits Thereto.
a. A counterpart of a letter agreement (the "Letter
Agreement") in the form of Exhibit "I" attached hereto, dated as of the
Closing Date and duly executed by Selling Partner, Urban Retail Properties,
Co. ("Urban Retail"),"Xxxx Management", "Xxxx Inc." (as such quoted terms
are hereinafter defined) and Buyer, regarding, among other things, certain
environmental matters as set forth in the "Mutual Indemnity Agreement" and
"Environmental Indemnity Agreement" (as such quoted terms are defined
therein), the confirmation on May 1, 1994 of Xxxx Management's management
of the Business Property, the reaffirmation of Xxxx Inc.'s indemnity
obligations under its agreement to manage the Business Property, and
certain assignments by partners of the Selling Partner.
b. A counterpart of an assignment of any and all rights of
Xxxx Property Management Corporation, a California corporation ("Xxxx
Management") under the management agreement for the Property to Urban
Retail, duly executed by Xxxx Management, dated as of the Closing Date, and
in the form of the assignment agreed to in connection with the Letter
Agreement (the "Assignment of Management Agreement").
c. A counterpart of an assignment of any and all rights of
Xxxx Management to receive certain management termination payments to
Buyer, duly executed by Xxxx Management, dated as of the Closing Date, and
in the form of the assignment agreed to in connection with the Letter
Agreement (the "Assignment of Management Termination Payments").
(6) Security Agreement. A counterpart of the Security Agreement,
duly executed by Selling Partner and dated as of the Closing Date.
B. Items To Be Delivered by Buyer. Buyer shall deliver to Selling
Partner:
(1) Authorization for Closing. The authorization of Buyer
specified in the Closing Procedure Letter.
(2) Opinion of Buyer's Counsel. A due execution/authority opinion
of Buyer's counsel, from a law firm reasonably satisfactory to Selling
Partner, addressed to Selling Partner, in form and substance reasonably
satisfactory to Selling Partner, and dated as of the Closing Date.
(3) Right of First Opportunity. A counterpart of the Right of
First Opportunity, dated as of the Closing Date and duly executed by Buyer.
(4) Letter Agreement. A counterpart of the Letter Agreement, dated
as of the Closing Date and duly executed by Buyer.
(5) UCC Financing Statements. UCC-1 financing statements with
respect to the security pledged under the Security Agreement dated as of
the Closing Date and duly executed by Buyer.
(6) Security Agreement. A counterpart of the Security Agreement,
dated as of the Closing Date and duly executed by Buyer.
(7) Assignment of Management Agreement. A counterpart of the
Assignment of Management Agreement, dated as of the Closing Date and duly
executed by Buyer.
(8) Assignment of Management Termination Payments. A counterpart
of the Assignment of Management Termination Payments, dated as of the
Closing Date and duly executed by Buyer.
Section 5.4. Closing Costs.
A. Selling Partner's Costs. Selling Partner shall pay (1) 50% of
(a) any documentary or transfer tax payable in connection with the delivery
of any instrument or document provided in or contemplated by this Agreement
or any agreement or commitment described or referred to herein, (b) all
expenses of or related to the issuance of the title insurance
endorsement(s) herein provided, however, that in no event shall Selling
Partner collectively pay more than $6,000 as its portion of the expenses
set forth in Sections 5.4A(1)(a) - (b) hereof, (c) the charges for or in
connection with the recording of any instrument or document provided herein
or contemplated by this Agreement or any agreement or document described or
referred to herein, (d) any sales or use taxes applicable to the
transactions contemplated by this Agreement; and (2) Selling Partner's
legal fees and expenses and the cost of all opinions, certificates,
instruments, documents and papers required to be delivered, or to cause to
be delivered, by Selling Partner hereunder, and, without limitation, the
cost of all performances by Selling Partner of its obligations hereunder.
B. Buyer's Costs. Buyer shall pay (1) 50% of (a) any documentary
or transfer tax payable in connection with the delivery of any instrument
or document provided in or contemplated by this Agreement or any agreement
or commitment described or referred to herein, (b) all expenses of or
related to the issuance of the title insurance endorsement(s) herein
provided, (c) the charges for or in connection with the recording of any
instrument or document provided herein or contemplated by this Agreement or
any agreement or document described or referred to herein, (d) any sales or
use taxes applicable to the transactions contemplated by this Agreement,
(e) plus any amount in excess of the amount payable by Selling Partner
pursuant to Sections 5.4A(1)(a) and (b) above, and (2) Buyer's legal fees
and expenses and the cost of all opinions, certificates, instruments,
documents and papers required to be delivered, or to cause to be delivered,
by Buyer hereunder, and, without limitation, the cost of all performances
by Buyer of its obligations hereunder.
Section 5.5. Prorations. Except as otherwise agreed to by the
parties, the prorations and adjustments to the Purchase Price are final
and, accordingly, subject to no post closing corrections or adjustments.
Section 5.6. Title Insurance. The Title Company shall issue
such endorsements, as reasonably requested by Buyer, to the existing policy
of title insurance (the "Title Policy") insuring the Partnership's
ownership, as of the Closing Date, of the Business Property, subject only
to the "Permitted Exceptions." As used herein, "Permitted Exceptions"
means real property taxes not yet due and payable (as of the Closing Date)
and the exceptions set forth on the Title Policy. Selling Partner shall
deliver to Title Company such instruments, documents, payments,
indemnities, releases and agreements and shall perform such other acts as
Title Company shall require in order to issue such title insurance
endorsements.
ARTICLE VI - REPRESENTATIONS AND WARRANTIES
Section 6.1. Representations and Warranties of Selling Partner.
Selling Partner represents and warrants to Buyer and the Partnership, and
each of them, the following:
A. Consents. Selling Partner has obtained all consents and
permissions related to the transactions herein contemplated and required
under any covenant, agreement, encumbrance, law or regulation.
B. Due Authorization, Execution, Organization, etc. This
Agreement and all agreements, instruments and documents herein provided to
be executed or to be caused to be executed by Selling Partner are and on
the Closing Date will be duly authorized, executed and delivered by and are
binding upon the same. Selling Partner is a limited partnership, duly
organized, validly existing and in good standing under the laws of the
State of Tennessee and duly authorized and qualified to do all things
required of it under this Agreement. Selling Partner has the capacity and
authority to enter into this Agreement and consummate the transactions
herein provided and nothing prohibits or restricts the right or ability of
Selling Partner to close the transactions contemplated hereunder and carry
out the terms hereof. The Partnership is a general partnership, duly
organized and validly existing under the laws of the Illinois, is duly
authorized, qualified and licensed under any and all applicable laws,
regulations, ordinances and orders to do all things required of it, under
or in connection with this Agreement and the agreements heretofore executed
by it. Neither this Agreement nor any agreement, document or instrument
executed or to be executed in connection with the same, nor anything
provided in or contemplated by this Agreement or any such other agreement,
document or instrument, does now or shall hereafter breach, invalidate,
cancel, make inoperative or interfere with, or result in the acceleration
of maturity of, any contract, agreement, lease, easement, right or
interest, entered into by Selling Partner (or its affiliates) affecting or
relating to the Partnership or the Business Property.
C. Subject Partnership Interest. The Subject Partnership Interest
is free and clear of any liens, encumbrances, claims or liabilities of any
kind or nature except as created by this Agreement and the transactions
contemplated hereby. Selling Partner has no claim or liability against the
Partnership except as provided herein. As of the Closing Date, Buyer will
acquire hereunder good title to, and the entire right, title and interest
in, the Subject Partnership Interest, free and clear of all liens,
encumbrances, liabilities, claims, rights, demands, exceptions, agreements,
covenants and restrictions of any kind or character, including any security
interests or any restriction on the sale, creation or assignment of all or
any part of such partnership interest, or, except for the rights created by
the Right of First Opportunity, any option, right or agreement for the
purchase or acquisition of the same or any interest in the same.
D. Existing Agreements. Neither Selling Partner, Xxxx Inc.,
Associates, nor any "affiliate" (as defined in Section 9.7 hereof) of any
of the foregoing (individually and collectively, the "Xxxx Entities") have
entered into or have caused the Partnership to enter into, either in the
name of any of the foregoing or in the name of the Partnership, any
agreements or understandings relating to the Business Property, except for
the Permitted Exceptions, the Existing Loan Documents, the Tenant Leases
and the Continuing Contracts. No alterations, amendments or waivers
pertaining to the foregoing will be made prior to the Closing Date. A
full, true and correct copy of the Partnership Agreement and all amendments
thereto that will be in effect on the Closing Date is attached as
Exhibit "J".
E. Default. With respect to the period prior to May 1, 1994,
Selling Partner represents and warrants to Buyer and the Partnership, and
each of them, the following: To Selling Partner's actual knowledge, the
Partnership is not in any material default in respect of any of its
obligations or liabilities pertaining to the Business Property. Without
limitation on the foregoing, to the Selling Partner's actual knowledge, the
Continuing Contracts, the Permitted Exceptions, the Existing Loan Documents
and the Tenant Leases are in full force and effect and free from material
default by the Partnership and, by any other party thereto; and to Selling
Partner's actual knowledge, there does not exist any state of facts or
circumstances or conditions or event which, after notice or lapse of time
or both, would constitute or result in any such default by the Partnership
or, by any other party.
F. Litigation. Except for the lawsuits ("Pending Disputes")
described in Exhibit "K" attached hereto, there are no actions, suits or
proceedings pending or, to the Selling Partner's actual knowledge,
threatened, before or by any judicial, administrative or union body, any
arbiter or any governmental authority, against Selling Partner.
G. Recitals. The statements contained in the recitals on page 1
of this Agreement are true and correct.
As used herein, "to Selling Partner's actual knowledge" means
the knowledge of Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxxx,
which will be deemed to include the information contained in any desk or
personal file of such individual but without any other independent
investigation or inquiry.
Section 6.2Representations and Warranties of Buyer. Buyer
represents and warrants to Selling Partner the following:
A. Consents. Buyer has obtained all consents and permissions
related to the transactions herein contemplated and required under any
covenant, agreement, encumbrance, law or regulation.
B. Due Authorization, Execution, Organization, etc. This
Agreement and all agreements, instruments and documents herein provided to
be executed or to be caused to be executed by Buyer are and on the Closing
Date will be duly authorized, executed and delivered by and are binding
upon the same. Buyer is a limited partnership, duly organized, validly
existing and in good standing under the laws of the State of Illinois and
duly authorized and qualified to do all things required of it under this
Agreement. Buyer has the capacity and authority to enter into this
Agreement and consummate the transactions herein provided and nothing
prohibits or restricts the right or ability of Buyer to close the
transactions contemplated hereunder and carry out the terms hereof. The
Partnership is a general partnership, duly organized and validly existing
under the laws of the State of Illinois, is duly authorized, qualified and
licensed under any and all applicable laws, regulations, ordinances and
orders to do all things required of it, under or in connection with this
Agreement and the agreements heretofore executed by it. Neither this
Agreement nor any agreement, document or instrument executed or to be
executed in connection with the same, nor anything provided in or
contemplated by this Agreement or any such other agreement, document or
instrument, does now or shall hereafter breach, invalidate, cancel, make
inoperative or interfere with, or result in the acceleration of maturity
of, any contract, agreement, lease, easement, right or interest, entered
into by Urban Retail or any affiliate of Buyer affecting or relating to the
Partnership or the Business Property.
C. Existing Agreements. From and after May 1, 1994, neither
Carlyle, Retail, nor any Affiliate of any of the foregoing (individually
and collectively, the "JMB Entities") have entered into or caused the
Partnership to enter into either in the name of the foregoing or in the
name of the Partnership any agreements or understandings related to the
Business Property, except for certain (1) Tenant Leases and Continuing
Contracts, (2) other documents or agreements for new leases, lease
terminations or amendments or other agreements related to leasing, (3)
certain maintenance contracts and (4) certain other documents described on
Exhibit "L" attached hereto and made a part hereof. A full, true and
correct copy of the Partnership Agreement, and all amendments thereto that
will be in effect on the Closing Date is attached as Exhibit "J".
ARTICLE VII - ADDITIONAL CONDITIONS
Section 7.1. Additional Conditions to Buyer's Obligations. In
addition to the conditions provided in other provisions of this Agreement,
Buyer's obligations to perform its undertakings provided in this Agreement
(including its obligation to purchase the Subject Partnership Interest) are
conditioned on the following:
A. Performance by Selling Partner. The due performance by each of
the Original Partners of each and every undertaking and agreement to be
performed by it under this Agreement (including the delivery to Buyer of
the items specified in Section 5 hereof) and the truth of each
representation and warranty made by Selling Partner in this Agreement at
the time as of which the same is made and as of the Closing Date as if made
on and as of the Closing Date (where such undertakings, agreements,
representations and warranties shall not, insofar as the same constitute
conditions under this subsection A, be limited by the diligent efforts or
best knowledge of Selling Partner or any other limitation which may
otherwise apply). Without limitation on the foregoing, there shall be no
exceptions noted in the Closing Certificate.
B. No Bankruptcy or Dissolution. That at no time on or before the
Closing Date shall any of the following ("Bankruptcy/Dissolution Event")
have been done by, against or with respect to any Selling Partner: (1) the
commencement of a case under Title 11 of the U.S. Code, as now constituted
or hereafter amended, or under any other applicable federal or state
bankruptcy law or other similar law; (2) the appointment of a trustee or
receiver of any property interest; (3) an assignment for the benefit of
creditors; (4) an attachment, execution or other judicial seizure of a
substantial property interest; (5) the taking of, failure to take, or
submission to any action indicating an inability to meet its financial
obligations as they accrue; or (6) a dissolution, liquidation, death or
incapacity.
C. No Taking. That there shall not have occurred at any time or
times on or before the Closing Date any taking or threatened taking (or
consideration by a governmental authority of a taking) of the Business
Property or any part thereof by eminent domain.
D. Consents. That as of the Closing Date, the parties to the
Existing Loan Documents shall have consented to the transactions
contemplated by this Agreement.
E. Delivery of Books and Records. That, on or before the Closing
Date, Selling Partner shall have delivered to Carlyle all books and records
of the Partnership in the Selling Partner's possession, including, but not
limited to, the tax returns of the Partnership and the backup information
related thereto.
Section 7.2.
Additional Conditions to Selling Partner's Obligation
To Close. In addition to the conditions provided in other provisions of
this Agreement, Selling Partner's obligation to sell the Subject
Partnership Interest is conditioned on the following:
A. Performance by Buyer. The due performance by Buyer of each and
every undertaking and agreement to be performed by it hereunder (including
the delivery to Selling Partner of the items to be delivered to it under
Section 5 hereof) and the truth of each representation and warranty made in
this Agreement by Buyer at the time as of which the same is made and as of
the Closing Date as if made on and as of the Closing Date (where, for
purposes of this subsection A, all representations and warranties and
undertakings and agreements made in this Agreement by Buyer shall be deemed
not to be limited by the diligent efforts or knowledge of Buyer or any
other limitation which might otherwise apply).
B. Absence of Bankruptcy/Dissolution Event. That at no time on or
before the Closing Date shall any Bankruptcy/Dissolution Event have been
done by, against or with respect to Buyer.
Section 7.3. Waiver. Any party may at any time or times, at its
election, waive any of the conditions to its obligations hereunder, but any
such waiver shall be effective only if contained in a writing signed by
such party. No such waiver shall reduce the rights or remedies of a party
by reason of any breach by the other party. Without limitation on the
foregoing, in the event that for any reason any item required to be
delivered hereunder shall not be delivered when required, then the party
obligated to deliver the same shall nevertheless remain obligated to
deliver the same, and nothing (including the closing of the transaction
hereunder) shall be deemed a waiver of any such requirement (except an
express written waiver)
Section 7.4. Outside Date. In the event that for any reason the
sale and purchase herein provided shall not be consummated on or before the
Closing Date, then (unless Buyer has commenced an action to specifically
enforce this Agreement within 30 days thereafter) either party may at any
time after the Closing Date, by written notice to the other party,
terminate this Agreement and the obligations of the parties hereunder;
provided, however, that such termination shall not release any party from
liability for any breach of this Agreement occurring prior to such
termination.
ARTICLE VIII - INDEMNIFICATION
Section 8.1. Indemnification by Selling Partner. Selling
Partner shall hold harmless, indemnify and defend Buyer, the Partnership
and the Business Property from and against: (l) Selling Partner's portion
(i.e., 36.94%) of any and all "Claims" (as hereinafter defined) whether
direct, contingent or consequential and no matter how arising, in any way
related to the Business Property and arising or accruing before the
Closing, including the Pending Disputes (and the facts which form the basis
thereof), any Claim arising or accruing under any Tenant Lease or other
Business Agreement before the Closing, any Claim arising from the
placement, creation or migration of hazardous materials on or onto the
Business Property prior to the Closing provided, however nothing herein
shall limit the obligations of Xxxxx X. Xxxx, Inc. ("Xxxx Inc.") under the
Mutual Indemnity Agreement or the Environmental Indemnity Agreement; and
(2) any Claim that (a) is inconsistent with (or results from any actual or
alleged fact that is inconsistent with) any representation or warranty of
Selling Partner or (b) results from any breach or default by Selling
Partner under this Agreement.
Section 8.2. Indemnification by Buyer. Buyer shall hold
harmless, indemnify and defend Selling Partner from and against: 36.94% of
any and all Claims, whether direct, contingent or consequential and no
matter how arising, in any way related to the Business Property and arising
or accruing on or after the Closing, any claim arising or accruing under
any tenant lease or Business Agreement on or after the Closing, any claim
from the placement, creation or migration of hazardous materials on or onto
the Business Property after the termination of the Environmental Indemnity
Agreement and Mutual Indemnity Agreement except to the extent arising out
of a breach of Seller's representations or warranties hereunder; and any
Claim that (a) is inconsistent with (or results from an actual or alleged
fact that is inconsistent with) any representation or warranty of Buyer or
(b) that results from any breach or default by Buyer under this Agreement.
Section 8.3. General Indemnity Provisions. Each indemnity
provided for under this Agreement shall be subject to the following
provisions:
A. The indemnity shall cover the costs and expenses of the
indemnitee, including reasonable attorneys' fees, related to any actions,
suits or judgments incident to any of the matters covered by such
indemnity.
B. The indemnitee shall notify the indemnitor of any Claim against
the indemnitee covered by the indemnity within 45 days after it has notice
of such Claim, but failure to notify the indemnitor shall in no case
prejudice the rights of the indemnitee under this Agreement unless the
indemnitor shall be prejudiced by such failure and then only to the extent
the indemnitor shall be prejudiced by such failure. Should the indemnitor
fail to discharge or undertake to defend the indemnitee against such
liability upon learning of the same, then the indemnitee may settle such
liability, and the liability of the indemnitor hereunder shall be
conclusively established by such settlement, the amount of such liability
to include both the settlement consideration and the reasonable costs and
expenses, including attorneys' fees, incurred by the indemnitee in
effecting such settlement.
C. Each party's indemnification obligations under this Agreement
shall also extend to any present or future advisor, trustee, director,
officer, partner, employee, beneficiary, shareholder, participant or agent
of or in the indemnitee or any entity now or hereafter having a direct or
indirect ownership interest in the indemnitee.
Section 8.4. Definition. "Claim" means any obligation,
liability, claim (including any claim for damage to property or injury to
or death of any persons), lien or encumbrance, loss, damage, cost or
expense.
ARTICLE IX - MISCELLANEOUS
Section 9.1. Brokers. Selling Partner represents and warrants
to Buyer, and Buyer represents and warrants to Selling Partner, that no
broker or finder has been engaged by it, respectively, in connection with
any of the transactions contemplated by this Agreement or to its knowledge
is in any way connected with any of such transactions. In the event of a
claim for broker's or finder's fee or commissions in connection herewith,
then Selling Partner shall indemnify and defend Buyer and the Partnership
from the same if it shall be based upon any statement or agreement alleged
to have been made by Selling Partner, and Buyer shall indemnify and defend
Selling Partner and the Partnership from the same if it shall be based upon
any statement or agreement alleged to have been made by Buyer.
Section 9.2. Survival. All warranties, representations,
covenants, obligations and agreements contained in this Agreement shall
survive the closing hereunder and the transfer and conveyance of the
Subject Partnership Interest hereunder and any and all performances
hereunder; provided, however, the representations and warranties contained
in Sections 6.1D, 6.1E, 6.1F, 6.1G and 6.2C hereof shall terminate on the
date which is six months after the Closing and all other representation and
warranties set forth in Section 6 hereof shall terminate on the date which
is seven years after the Closing, except to the extent a claim under any of
the foregoing has been made by the benefitting party prior to such
termination date. All warranties and representations shall be effective
regardless of any investigation made or which could have been made except
as provided herein.
Section 9.3. Further Instruments. Each party will, whenever and
as often as it shall be requested so to do by the other, cause to be
executed, acknowledged or delivered any and all such further instruments
and documents as may be necessary or proper, in the reasonable opinion of
the requesting party, in order to carry out the intent and purpose of this
Agreement.
Section 9.4. Limitation of Liability.
A. No present or future advisor, trustee, director, officer,
partner, employee, beneficiary, shareholder, participant or agent of or in
Buyer or any entity now or hereafter having a direct or indirect ownership
interest in Buyer shall have any personal liability, directly or
indirectly, under or in connection with this Agreement or any agreement
made or entered into under or pursuant to the provisions of this Agreement,
or any amendment or amendments to any of the foregoing made at any time or
times, heretofore or hereafter, and Selling Partner and its successors and
assigns and, without limitation, all other persons and entities, shall look
solely to Buyer's assets for the payment of any claim or for any
performance, and Selling Partner hereby waives any and all such personal
liability. Without limitation on the foregoing, neither the negative
capital account of any constituent partner in Selling Partner nor any
obligation of any constituent partner in Selling Partner, to restore a
negative capital account or to contribute capital to Selling Partner or any
other constituent partner in Selling Partner, at any time, shall be deemed
to be the property or asset of Selling Partner or any such other
constituent partner (and neither Buyer nor any of its successors and
assigns shall have any right to collect, enforce or proceed against or with
respect to any such negative capital account or such partner's obligation
to restore or contribute). In addition, neither Buyer nor any successor or
assign of Buyer is assuming any personal liability, directly or
indirectly, under or in connection with any agreement, lease, instrument,
claim or right constituting a part of the Business Property or to which the
Business Property is now or hereafter subject. The limitations of
liability provided in this Section are in addition to, and not in
limitation of, any limitation on liability applicable to Buyer provided by
law or by any other contract, agreement or instrument.
B. No present or future advisor, trustee, director, officer,
employee, beneficiary, shareholder, participant or agent of or in Selling
Partner or any entity now or hereafter having a direct or indirect
ownership interest in Selling Partner shall have any personal liability,
directly or indirectly, under or in connection with this Agreement or any
amendment or amendments to any of the foregoing made at any time or times,
heretofore or hereafter and Buyer and its successors and assigns and,
without limitation, all other persons and entities, shall look solely to
Selling Partner's assets for the payment of any claim or for any
performance, and Buyer hereby waives any and all such personal liability.
Without limitation on the foregoing, neither the negative capital account
of any constituent partner in Selling Partner nor any obligation of any
constituent partner in Selling Partner, to restore a negative capital
account or to contribute capital to Selling Partner or any other
constituent partner in Selling Partner, at any time, shall be deemed to be
the property or asset of Selling Partner or any such other constituent
partner (and neither Buyer nor any of its successors and assigns shall have
any right to collect, enforce or proceed against or with respect to any
such negative capital account or such partner's obligation to restore or
contribute). The limitations of liability provided in this Section are in
addition to, and not in limitation of, any limitation and liability
applicable to Buyer provided by law or by any other contract, agreement or
instrument.
Section 9.5. Matters of Construction.
A. Incorporation of Exhibits. All exhibits attached and referred
to in this Agreement are hereby incorporated herein as fully set forth in
(and shall be deemed to be a part of) this Agreement.
B. Entire Agreement. This Agreement contains the entire agreement
between the parties respecting the matters herein set forth and supersedes
all prior agreements between the parties hereto respecting such matters.
C. Time of the Essence. Subject to subsection D below, time is of
the essence of this Agreement.
D. Non-Business Days. Whenever action must be taken (including
the giving of notice or the delivery of documents) under this Agreement
during a certain period of time (or by a particular date) that ends (or
occurs) on a non-business day, then such period (or date) shall be extended
until the immediately following business day. As used herein, "business
day" means any day other than a Saturday, Sunday or federal or Illinois
State holiday.
E. Severability. 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 such term and provision of this Agreement shall
be valid and be enforced to the fullest extent permitted by law.
F. Captions. Article and section headings shall not be used in
construing this Agreement.
G. Cumulative Remedies. No remedy conferred upon a party in this
Agreement is intended to be exclusive of any other remedy herein or by law
provided or permitted, but each shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing
at law, in equity or by statute (except as otherwise expressly herein
provided). Any party shall be entitled to maintain, on its own behalf or
on behalf of the Partnership, any action or proceeding against the other
parties or the Partnership (including any action for damages, specific
performance or declaratory relief) for or by reason of breach by such party
of this Agreement or any agreement entered into in connection herewith,
notwithstanding the fact that any one or more of the parties to such
proceeding may then be partners in the Partnership, and without dissolving
the Partnership as a partnership.
H. No Waiver. No waiver by a party of any breach of this
Agreement or of any warranty or representation hereunder by the other party
shall be deemed to be a waiver of any other breach by such other party
(whether preceding or succeeding and whether or not of the same or similar
nature), and no acceptance of payment or performance by a party after any
breach by the other party shall be deemed to be a waiver of any breach of
this Agreement or of any representation or warranty hereunder by such other
party, whether or not the first party knows of such breach at the time it
accepts such payment or performance. No failure or delay by a party to
exercise any right it may have by reason of the default of the other party
shall operate as a waiver of default or modification of this Agreement or
shall prevent the exercise of any right by the first party while the other
party continues to be so in default.
I. Consents and Approvals. Except as otherwise expressly provided
herein, any approval or consent provided to be given by a party hereunder
may be given or withheld in the absolute discretion of such party.
J. Governing Law. This Agreement shall be construed and enforced
in accordance with the internal laws of the State of Illinois (without
regard to conflicts of law).
K. No Third Party Beneficiaries. Except as provided in
Section 8.3C, nothing in this Agreement, expressed or implied, is intended
to confer any rights or remedies upon any person, other than the parties
hereto and, subject to the restrictions on assignment herein contained,
their respective successors and assigns.
L. Certain Terminology.
(1) Whenever the words "including", "include" or "includes"
are used in this Agreement, they shall be interpreted in a non-exclusive
manner as though the words ", without limitation," immediately followed the
same.
(2) Except as otherwise indicated, all Exhibit, Article and
Section references in this Agreement shall be deemed to refer to the
Exhibits, Articles and Sections in this Agreement.
M. Amendments. This Agreement may be amended by written agreement
of amendment executed by all parties, but not otherwise.
Section 9.6. Attorneys' Fees. If any party obtains a judgment
against any other party by reason of breach of this Agreement, a reasonable
attorneys' fee as fixed by the court shall be included in such judgment.
Section 9.7. Successors and Assigns.
A. Seller. Seller may not assign or transfer its rights or
obligations under this Agreement prior to the Closing Date without the
prior written consent of Buyer (which Buyer agrees not to unreasonably
withhold), except to any of the following (collectively referred to as a
"Seller Permitted Transferee") (a) Xxxx Inc., (b) an "affiliate" or
subsidiary of Xxxx Inc., (c) a general or limited partnership in which
Selling Partner, Xxxx or an affiliate or subsidiary of Xxxx Inc. is a
general partner, (d) a real estate investment trust in which Xxxx or an
affiliate or subsidiary of Xxxx Inc. is a manager, or (e) any trust or
common fund of which Xxxx or an affiliate or subsidiary of Xxxx Inc. is an
advisor. As used herein, an "affiliate" of Xxxx Inc. includes any
corporation in which Xxxx Inc. or its shareholders, individually or
collectively, own or control, directly or indirectly, more than 50% of the
common stock. Subject to the foregoing, this Agreement and the terms and
provisions hereof shall inure to the benefit of and be binding upon the
successors and assigns of the parties. In the event the rights and
obligations of Selling Partner shall be transferred and assigned as
aforesaid, then such assignor shall be released from any obligation or
liability hereunder, and such transferee and assignee ("Selling Partner
Assignee") will be substituted in place of such assignor in the
above-provided-for documents and it shall be entitled to the benefit of and
may enforce Buyer's covenants, representations and warranties hereunder.
Upon any such assignment by Buyer or any successor or assign of Selling
Partner, then the assignor's liabilities and obligations hereunder or under
any instruments, documents or agreements made pursuant hereto shall be
binding upon Selling Partner Assignee; provided, however, that Selling
Partner Assignee shall have the benefit of any limitations of such
liabilities and obligations applicable to either the assignor or Selling
Partner Assignee, provided by law or by the terms hereof or such
instruments, documents or agreements.
B. Buyer. Buyer may not assign or transfer its rights or
obligations under this Agreement prior to the Closing Date without the
prior written consent of Selling Partner (which Selling Partner agrees not
to unreasonably withhold), except to any of the following (collectively
referred to herein as the "Buyer Permitted Transferees"): (a) JMB Realty
Corporation, a Delaware corporation ("JMB"), (b) an "affiliate" or
subsidiary of JMB, (c) JMB Realty Trust, a real estate investment trust
("Trust"), (d) a general or limited partnership in which Buyer, Trust, JMB
or an affiliate or subsidiary of JMB is a general partner, (e) a real
estate investment trust in which JMB or an affiliate or subsidiary of JMB
is a manager, or (f) any entity created in connection with a "roll up" of
Buyer, Trust, JMB or an affiliate or subsidiary of JMB. As used herein, an
"affiliate" of JMB includes any corporation in which JMB or its
shareholders, individually or collectively, own or control, directly or
indirectly, more than 50% of the common stock.
C. General. Subject to the foregoing, this Agreement and the
terms and provisions hereof shall inure to the benefit of and be binding
upon the successors and assigns of the parties. In the event the rights
and obligations of Buyer shall be transferred and assigned as aforesaid,
then such assignor shall be released from any obligation or liability
hereunder, and such transferee and assignee ("Buyer Assignee") will be
substituted in place of such assignor in the above-provided-for documents
and it shall be entitled to the benefit of and may enforce Selling
Partner's covenants, representations and warranties hereunder. Upon any
such assignment by Buyer or any successor or assign of Buyer, then the
assignor's liabilities and obligations hereunder or under any instruments,
documents or agreements made pursuant hereto shall be binding upon Buyer
Assignee; provided, however, that Buyer Assignee shall have the benefit of
any limitations of such liabilities and obligations applicable to either
the assignor or Buyer Assignee, provided by law or by the terms hereof or
such instruments, documents or agreements.
Section 9.8. Notices. Any notice which a party is required or
may desire to give the other shall be in writing and may be sent by
personal delivery or by mail (either [i] by United States registered or
certified mail, return receipt requested, postage prepaid, or [ii] by
Federal Express or similar generally recognized overnight carrier regularly
providing proof of delivery), addressed as follows (subject to the right of
a party to designate a different address for itself by notice similarly
given at least fifteen (15) days in advance):
To Selling Partner:
Mall of Memphis Associates
0000 Xx Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: President and CEO
With Copy To:
Plaza Properties of America, Inc.
0000 Xx Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Vice President and General Counsel
To Buyer:
Carlyle Real Estate Limited Partnership-XI
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xx. Xxxxx Xxxx
With Copy To:
Pircher, Xxxxxxx & Xxxxx
1999 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Real Estate Notices (DSB)
Any notice so given by mail shall be deemed to have been given as of the
date of delivery (whether accepted or refused) established by U.S. Post
Office return receipt or the overnight carrier's proof of delivery or
refusal, as the case may be. Any such notice not so given shall be deemed
given upon receipt of the same by the party to whom the same is to be
given.
Section 9.9. Counterparts. This Agreement may be executed in
any number of counterparts, provided each of the parties hereto executes at
least one counterpart; each such counterpart hereof shall be deemed to be
an original instrument, but all such counterparts together shall constitute
but one agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
SELLING PARTNER:
MALL OF MEMPHIS ASSOCIATES,
a Tennessee limited partnership
By: Plaza Properties of America, Inc.,
a Delaware corporation
as general partner
By: ____________________________
Name: ____________________
Title: ___________________
By: ____________________________
Name: ____________________
Title: ___________________
BUYER:
CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XI,
an Illinois limited partnership
By: JMB Realty Corporation,
a Delaware corporation,
General Partner
By: ____________________________
Name: ____________________
Title: ___________________
EXHIBIT LIST
EXHIBIT A - Description of Real Property
EXHIBIT B - Rent Roll
EXHIBIT C - Continuing Contracts
EXHIBIT D - Form of Note
EXHIBIT E - Form of Security Agreement
EXHIBIT F - Form of Assignment of Partnership Interest
EXHIBIT G - Form of Certification of Non-Foreign Status
EXHIBIT H - Form of Right of First Opportunity
EXHIBIT I - Form of Letter Agreement
EXHIBIT J - Partnership Agreement
EXHIBIT K - Pending Disputes
EXHIBIT L - List of Certain Agreements Signed by JMB or
Affiliates
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
EXHIBIT K
PENDING DISPUTES
None.
