EXECUTION COPY
============================================================
AGREEMENT OF PURCHASE AND SALE
BETWEEN
CORPORATE PROPERTY INVESTORS
("Seller")
AND
DEVELOPMENT OPTIONS, INC.
("Purchaser")
Dated December 31, 1997
==========================================================
TABLE OF CONTENTS
Page
ARTICLE IDefinitions . . . . . . 1
SECTION 1.02. Definitions Generally . . . . . . 5
ARTICLE IIAgreement to Sell and Purchase the Mall6
ARTICLE IIIPurchase Price, Deposits and Escrow6
ARTICLE IVFailure to Close
SECTION 4.01. Purchaser's Default . . . . . . . 7
SECTION 4.02. Seller's Default. . . . . . . . . 8
SECTION 4.03. Survival. . . . . . . . . . . . . 8
ARTICLE VClosing and Transfer of Title
SECTION 5.01. Closing . . . . . . . . . . . . . 9
SECTION 5.02. Closing Procedure.. . . . . . . . 9
SECTION 5.03. Purchaser's Performance . . . . .12
SECTION 5.04. Evidence of Authority;
Miscellaneous . . . . . . . . . .12
ARTICLE VIProrations of Rents, Taxes, Etc.
SECTION 6.01. Rents; Rents as and when Collected12
SECTION 6.02. Additional Items. . . . . . . . .17
ARTICLE VIILoss due to Casualty or Condemnation
SECTION 7.01. Loss due to Condemnation. . . . .18
SECTION 7.02. Loss due to Casualty. . . . . . .19
ARTICLE VIIIMaintenance of the Property20
ARTICLE IXBroker. . . . . . . . .21
ARTICLE XRepresentations and Warranties
SECTION 10.01. Representations and Warranties
of Seller. . . . . . . . . . . .21
SECTION 10.02. Representations and Warranties
of Purchaser . . . . . . . . . .26
SECTION 10.03. No Implied Representations . . .26
SECTION 10.05. No Independent Investigation . .28
SECTION 10.06. Effect of Estoppels. . . . . . .29
SECTION 10.07. Survival of Seller's
Warranties, etc. . . . . . . . .29
ARTICLE XIIndemnification
SECTION 11.01. Seller's Indemnification . . . .30
SECTION 11.02. Purchaser's Indemnification. . .31
SECTION 11.03. Surviving Covenants. . . . . . .31
SECTION 11.04. No Limitations . . . . . . . . .31
ARTICLE XIIInspection Period. . .31
ARTICLE XIIIAssignment . . . . . .32
ARTICLE XIVNotices. . . . . . . .32
ARTICLE XVExpenses. . . . . . . .33
ARTICLE XVIMiscellaneous
SECTION 16.01. Successors and Assigns . . . . .34
SECTION 16.02. Gender . . . . . . . . . . . . .34
SECTION 16.03. Captions . . . . . . . . . . . .34
SECTION 16.04. Construction . . . . . . . . . .34
SECTION 16.05. Entire Agreement . . . . . . . .34
SECTION 16.06. Cure by Guarantor. . . . . . . .34
SECTION 16.07. Original Document. . . . . . . .34
SECTION 16.08. Governing Law. . . . . . . . . .34
SECTION 16.09. Operating and Expense Statement.34
SECTION 16.10. No Third Party Beneficiary . . .35
SECTION 16.11. Exculpation. . . . . . . . . . .35
SECTION 16.12. No Recording; Confidentiality. .35
SECTION 16.13. Waiver of Trial by Jury. . . . .38
Exhibit A Personal Property
Exhibit B Land
Exhibit C Operating Agreements
Exhibit D Other Agreements
Exhibit E Form of Limited Warranty Deed
Exhibit F Permitted Encumbrances
Exhibit G Form of Bill of Sale
Exhibit H Form of Assignment and Assumption of Leases
Exhibit I Form of Assignment and Assumption of Operating
Agreements
Exhibit J Form of Assignment and Assumption of Other Agreements
Exhibit K Form of Major and Non-Major Tenant Estoppel
Exhibit L Form of Adjoining Owners Estoppel
Exhibit M Notices Relating to Operating Agreements
Exhibit N Rent Roll
Exhibit O Form of FIRPTA Affidavit
Exhibit P Delinquent Tenants
Exhibit Q Litigation
Exhibit R Schedule of Environmental Reports
Exhibit S Intangible Personal Property
Exhibit T Form of General Assignment
Exhibit U Audits in Progress
Exhibit V Financial Statements
Exhibit W Special Assessments
THIS AGREEMENT OF PURCHASE AND SALE is made this
31st day of December, 1997 by and between CORPORATE
PROPERTY INVESTORS, a Massachusetts business trust
("Seller"), and DEVELOPMENT OPTIONS, INC., a Wyoming
corporation ("Purchaser").
W I T N E S S E T H :
WHEREAS Seller is owner in fee (other than the portions
thereof owned by Adjoining Owners) of Burnsville Center, a regional
shopping mall located in Burnsville, Minnesota and more particularly
described in this Agreement.
WHEREAS Seller desires to sell such shopping mall to
Purchaser, and Purchaser desires to purchase such shopping mall from
Seller, subject to and upon all the terms, covenants and conditions of
this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual undertakings in this Agreement, the parties hereto agree as
follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. Wherever used in this Agreement,
the following terms shall have the meanings set forth in this Article I
unless the context of this Agreement clearly requires another
interpretation:
"Adjoining Owners" shall mean J.C. Penney Properties, Inc., a
Delaware corporation, Dayton-Hudson Corporation, a Minnesota corporation,
Sears, Roebuck & Co., a New York corporation and Mervyn's, a
California corporation.
"Adjoining Properties" shall mean the land and/or the
improvements thereon of Adjoining Owners which are not part of but are
operated in conjunction with such Mall under the terms of an Operating
Agreement.
"Adjustment Point" shall have the meaning set forth in
Section 6.01.
"Appurtenances" shall mean, with respect to the Mall and the
Land, all right, title and interest, if any, of Seller in and to the
following: (a) all land lying in the bed of any street, highway, road or
avenue, open or proposed, public or private, in front of or adjoining the
Land, to the center line thereof; (b) all rights of way, highways, public
places, easements, appendages, appurtenances, sidewalks, alleys, strips
and gores of land adjoining or appurtenant to the Land which are now or
hereafter used in connection with the Mall; (c) all awards to be made in
lieu of any of the foregoing, or for damages to the Land by reason of the
change of grade of any street, highway, road or avenue; and (d) all
easements, rights and privileges benefiting the Land, including those
under the applicable Operating Agreement or Agreements.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which national banking institutions in New York City
are authorized or required to close.
"Closing" shall mean the closing of the sale of the Mall by
Seller to Purchaser provided for in Article V.
"Closing Date" shall have the meaning specified in
Section 5.01.
"Deposit" shall have the meaning set forth in Section 3(a).
"Escrow Holder" shall mean the Title Company acting in its
capacity as escrow agent under Article III.
"Excepted Items" shall mean: (i) all items of personal
property owned by the Managing Agent, Tenants, subtenants, independent
contractors, business invitees, utilities or Adjoining Owners including
all gift certificates, registers and stock; (ii) all items of personal
property not owned but leased by Seller as identified on Exhibit A annexed
hereto; and (iii) all cash on hand, checks, money orders, prepaid postage
in postage meters and, subject to Article VI, accounts receivable.
"Governmental Authorities" shall mean all agencies, bureaus,
departments and officials of Federal, state, county, municipal and local
governments and public authorities having jurisdiction over the Mall or
any part thereof.
"Hazardous Materials" shall have the meaning set forth in
subsection 10.01(k).
"Impositions" shall mean all real estate and personal property
taxes, general and special assessments, water and sewer charges, license
fees and other fees and charges assessed or imposed by Governmental
Authorities upon the applicable Property, Intangible Personal Property
and/or Personal Property.
"Improvements" shall mean all buildings, facilities,
equipment, structures and improvements now located or hereafter erected on
the Land, and all fixtures constituting a part thereof, other than those
owned by Adjoining Owners.
"Inspection Period" shall have the meaning set forth in
Article XII.
"Intangible Personal Property" shall mean all right, title and
interest of Seller in and to all telephone numbers listed after the name
of the Mall, all names (including the right to use the name Burnsville
Mall), trade names, designations, logos and service marks, licenses and
permits (in each case, the extent assignable) and the appurtenant good
will, used in connection with operation of the Mall (other than the names
or variations thereof of Seller, the Managing Agent, Adjoining Owners and
Tenants), agreements to operate for specific periods, radius restriction
agreements and similar agreements made by Tenants and Major Tenants,
whether in their Leases or Operating Agreements or in separate agreements,
and all similar items of intangible personal property owned by Seller and
utilized solely in connection with the operation of the Mall (excluding
Excepted Items) including without limitation those set forth on Exhibit S.
"knowledge" or "notice" when used in respect of Seller shall
mean, without independent investigation other than inquiry of the Managing
Agent of the Mall, the actual knowledge of or written notice received by
Robert Johnson, Wendy Thompson, James Selonick or Robert Lowenfish.
"Land" shall mean the following: all those certain lots,
pieces of parcels of land situate, lying and being in the County of
Dakota, State of Minnesota, more particularly described in Exhibit B
annexed hereto and made a part hereof, together with the Appurtenances.
"Leases" shall mean all leases, licenses, concessions and
other forms of agreement, written or oral, however denominated, wherein
Seller (as a party named therein or the successor thereto) grants to any
party or parties, other than the Managing Agent, the right of use or
occupancy of any portion of the Mall, and all renewals, modifications,
amendments and guaranties affecting the same, but expressly excluding the
Operating Agreements and Other Agreements.
"Legal Requirements" shall mean all statutes, laws,
ordinances, rules, regulations, executive orders and requirements of all
Governmental Authorities which are applicable to the Mall or any part
thereof or the use or manner of use thereof, or to the owners, Tenants or
occupants thereof in connection with such ownership, occupancy or use.
"Letter of Credit" shall have the meaning set forth in
Article III.
"Losses" shall have the meaning set forth in Section 11.01.
"Major Tenant" shall mean any Tenant of the Mall leasing an
aggregate amount of space in such Mall in excess of 15,000 square foot of
gross leasable area.
"Mall" shall mean the Land, the Improvements, the
Appurtenances, the Personal Property, the Leases, the Operating
Agreements, the Other Agreements and the Intangible Personal Property.
"Management Agreement" shall mean that certain agreement dated
as of November 15, 1996 between Seller and Managing Agent, as amended from
time to time.
"Managing Agent" shall mean Pembrook Management, Inc., a New
York corporation.
"Operating Agreements" shall mean all agreements and/or ground
or operating leases, as amended, by and between Seller or its predecessor
in title to the Mall and the Adjoining Owners and relating to the Mall.
"Other Agreements" shall mean all contracts, agreements and
documents relating to the Mall to which Seller or its predecessor in
interest shall be, at Closing, a party and by which Seller is bound and
which Purchaser is obligated to assume hereunder, other than the Operating
Agreements and Leases, and including without limitation, all service
contracts, construction contracts, leases of personal property and utility
agreements.
"Permitted Encumbrances" shall have the meaning set forth in
Section 5.02.
"Personal Property" shall mean all apparatus, machinery,
devices, appurtenances, equipment, furniture, furnishings, seasonal
decorations and other items of personal property (other than Intangible
Personal Property and the Excepted Items) owned by Seller and located at
and used in connection with the ownership, operation or maintenance of the
Mall, and shall include the items listed in Exhibit A.
"Property" shall mean the Land and the Improvements.
"Purchase Price" shall have the meaning set forth in
Article III.
"Rents" shall mean all fixed, minimum, additional, percentage,
overage and escalation rents, common area and/or mall maintenance charges,
advertising and promotional charges, insurance charges, rubbish removal
charges, sprinkler charges, shoppers aid charges, water charges, utility
charges, HVAC charges and other amounts payable under the Leases or the
Operating Agreements.
"Seller Estoppel" shall have the meaning specified in
subsection 5.02(h).
"Surviving Covenants" shall mean any covenant contained in
this Agreement that by its terms survives the Closing.
"Tenants" shall mean the tenants, licensees, concessionaires
or other users or occupants under Leases.
"Tenant Notices" shall have the meaning specified in
subsection 5.02(f).
"Title Company" shall mean First American Title Insurance
Company, 228 East 45th Street, New York, New York 10017.
"Violations" shall mean violations of Legal Requirements
existing with respect to the Mall.
SECTION 1.02. Definitions Generally. Definitions in this
Agreement apply equally to both the singular and plural forms of the
defined terms. The words "include" and "including" shall be deemed to be
followed by the phrase "without limitation" when such phrase does not
otherwise appear. The terms "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular section, paragraph or subdivision. The article and section
titles appear as a matter of convenience only and shall not affect the
interpretation of this Agreement. All article, section, paragraph,
clause, exhibit or schedule references not attributed to a particular
document shall be references to such parts of this Agreement.
ARTICLE II
Agreement to Sell and Purchase the Mall
Upon and subject to the terms and conditions of this
Agreement, Seller agrees to sell and convey all of Seller's rights, title
and interest in and to the Mall to Purchaser and Purchaser agrees to
purchase all of Seller's right, title and interest in and to the Mall from
Seller. Seller shall convey and Purchaser shall accept fee simple title
to the Property in accordance with the terms of this Agreement, subject
only to the Permitted Encumbrances.
ARTICLE III
Purchase Price, Deposits and Escrow
The purchase price which the Purchaser agrees to pay and the
Seller agrees to accept for the Property shall be the sum of Eighty One
Million Dollars ($81,000,000.00) (hereinafter referred to as the "Purchase
Price"), payable as follows:
(a) On or before January 6, 1998, Purchaser shall deliver to
Escrow Agent an irrevocable letter of credit in the stated amount of One
Million Six Hundred Sixty Thousand Dollars ($1,660,000), having terms and
conditions (including the issuer thereof and the expiry date thereof)
satisfactory in all respects to Seller (the "Letter of Credit"). The
Letter of Credit, together with the proceeds of any drawing thereunder, is
sometimes referred to in this Agreement as the "Deposit".
(b) The Purchase Price, plus or minus adjustments and credits
provided for in Article VI and any other applicable provisions of this
Agreement, shall be paid by Purchaser to Seller at the time of Closing by
wire transfer of immediately available Federal funds through the Escrow
Holder, with the transfer of funds to an account to be designated by
Seller to be completed by 2:00 p.m. on the Closing Date.
In addition to the Deposit, Purchaser shall deposit three
(3) fully executed copies of this Agreement with the Escrow Holder
immediately after both parties have executed it. The Escrow Holder shall
retain one copy of this Agreement and deliver one copy hereof to each of
Purchaser and Seller. The parties acknowledge that (i) Escrow Holder is
acting solely as a stakeholder at their request and for their convenience,
(ii) Escrow Holder shall not be deemed to be the agent of either of the
parties and (iii) Escrow Holder shall have no liability to any party on
account of its failure to disburse the Deposit (beyond disbursing the
Deposit and any earnings thereon as directed by the parties or a court of
competent jurisdiction). As between Escrow Holder on the one hand, and
Seller and Purchaser on the other hand, Seller and Purchaser shall jointly
and severally indemnify and hold Escrow Holder harmless from and against
all costs, claims and expenses, including reasonable attorneys' fees,
incurred in connection with the performance of Escrow Holder's duties
hereunder, except with respect to actions or omissions taken or permitted
by Escrow Holder in disregard of this Agreement or involving bad faith or
negligence on the part of the Escrow Holder. As between Seller and
Purchaser, the prevailing party in any dispute concerning the Deposit
shall be indemnified and held harmless from payments due to the Escrow
Holder under the preceding sentence.
ARTICLE IV
Failure to Close
SECTION 4.01. Purchaser's Default. (a) If Seller has
complied with all of the covenants and conditions contained herein in all
material respects and Purchaser fails to consummate this Agreement and
take title by reason of a default on Purchaser's part, then the parties
hereto recognize and agree that the damages that Seller will sustain as a
result thereof will be substantial, but difficult if not impossible to
ascertain. Therefore, the parties agree that, in the event of Purchaser's
default as
aforesaid, Seller shall, as its sole remedy, first demand payment from
Purchaser in an amount equal to the Deposit as liquidated damages (in
which event, following full payment, the Letter of Credit shall be
returned to Purchaser), and if Seller has not received such amount by the
earlier of five days after Seller's demand or the day prior to the expiry
date of the Letter of Credit, then Seller shall be entitled to direct the
Escrow Agent to draw under the Letter of Credit in the full amount thereof
and pay the proceeds of such drawing to the Seller plus interest earned
thereon, if any, as liquidated damages, and after such payment or drawing
neither party shall have any further rights or obligations with respect to
the other under this Agreement, except for the Surviving Covenants.
Seller acknowledges and agrees (1) that the Deposit plus interest earned
thereon is a reasonable estimate of and bears a reasonable relationship to
the damages that would be suffered and costs incurred by Seller as a
result of having withdrawn the Property from sale and the failure of
closing to occur due to a default by Purchaser under this Agreement and
(2) Purchaser seeks to limit its liability under this Agreement to the
amount of the Deposit plus interest earned thereon in the event this
Agreement is terminated and the transaction contemplated by this Agreement
does not close due to a default by Purchaser hereunder.
(b) In the event that after the Closing Date (i) Purchaser is
in default in the payment of any monetary obligation hereunder which
continues for more than ten days or (ii) is in default in the performance
of any other obligation hereunder which continues for more than 45 days,
then Seller may seek damages (but excluding consequential damages) from
Purchaser.
SECTION 4.02. Seller's Default. In the event that Purchaser
has complied with all of the covenants and conditions contained herein and
is ready, willing and able to take title to the Property in accordance
with this Agreement, and Seller defaults in performance of its obligations
in any material respect hereunder and fails to consummate this Agreement,
then Purchaser shall be entitled to pursue, at its election, one of the
following as its sole and exclusive remedy: (i) terminate this Agreement
and recover the Deposit plus any interest accrued thereon, (ii) not
terminate this Agreement and seek specific performance of this Agreement
or (iii) in the case of prior sale or mortgaging of the Mall to any person
or entity (other than Purchaser or its successors or assigns) in breach of
this Agreement, seek damages (but excluding consequential damages) but
only if Purchaser has theretofore
brought an action seeking specific performance of Seller's obligations
under this Agreement within six months after such prior sale or
mortgaging. Except as provided in the preceding clause (iii), Purchaser
hereby waives any right to sue Seller for damages (including consequential
damages) for any default by Seller hereunder, but if the Closing occurs,
subject to the provisions of Sections 10.06 and 10.07, such waiver shall
not apply to damages to which Purchaser may be entitled hereunder by
reason of any breach by Seller of any of its warranties or representations
hereunder which survive the Closing.
SECTION 4.03. Survival. The provisions of this Article IV
shall be Surviving Covenants.
ARTICLE V
Closing and Transfer of Title
SECTION 5.01. Closing. The parties hereto agree to conduct
the Closing at 10:00 a.m. New York, New York time on January 30, 1998 (the
"Closing Date") at the offices of Cravath, Swaine & Moore in New York, New
York. Time shall be of the essence with respect to the Closing Date, and
this Agreement shall terminate if for any reason the Closing does not
occur on the Closing Date.
SECTION 5.02. Closing Procedure. Seller shall execute and
deliver or cause to be delivered to Purchaser on or before the Closing:
(a) a Limited Warranty Deed, in the form attached hereto as
Exhibit E, proper for recording, conveying the Land and Improvements
to Purchaser, subject, however, to such title matters as are set
forth in Exhibit F (the "Permitted Encumbrances");
(b) a Bill of Sale in the form attached hereto as Exhibit G,
dated as of the date of Closing transferring the Personal Property
to Purchaser, which bill of sale shall contain no warranties,
express or implied, by Seller except that Seller owns the Personal
Property transferred thereby, free and clear of all liens or
encumbrances except as set forth in Exhibit F (the "Permitted
Encumbrances");
(c) an Assignment and Assumption of Leases in the form
attached hereto as Exhibit H, dated the date of Closing, assigning
all of the Seller's right, title and interest as landlord in and to
any Leases;
(d) an Assignment and Assumption of Operating Agreements in
the form attached hereto as Exhibit I, dated the date of Closing,
assigning to Purchaser all of Seller's right, title and interest in,
to and under the Operating Agreements;
(e) an Assignment and Assumption of Other Agreements in the
form attached hereto as Exhibit J, dated the date of Closing,
assigning to Purchaser all of Seller's right, title and interest in,
to and under the Other Agreements;
(f) a "General Assignment" by Seller to Purchaser, in the form
annexed hereto as Exhibit T, of all of Seller's right, title and
interest in and to the following, if any: (i) all warranties and
guarantees of manufacturers, suppliers and contractors, to the
extent the same are assignable, (ii) all permits of Governmental
Authorities, and licenses and approvals of private utilities and
others, required for or necessary to the operation and maintenance
of the Mall, to the extent the same are assignable and relate to the
Mall, (iii) all cash security deposits held by any utility with
respect to the Mall (plus the interest accrued thereon, if any),
(iv) the Intangible Personal Property, (v) all site plans, surveys,
plans or specifications and floor plans relating to the Mall,
(vi) all traffic pattern and similar studies, all architectural and
engineering plans (whether "as built" or design), including, without
limitation, any such plans relating to any proposed expansion or
renovation, and any feasibility or marketing studies prepared by
third parties for Seller or any affiliate of Seller, (vii) all
catalogues, booklets, manuals, files, logs, records, correspondence,
tenant lists, tenant prospect lists, tenant histories, tenant files,
brochures and materials, advertisements and other similar intangible
property directly relating to the Mall or any part thereof and, if
necessary, separate assignments in proper form relating to items in
clause (iv) and (viii) all agreements to operate for specific
periods, radius restriction agreements and similar agreements made
by the tenants and anchor stores operating at or in connection with
the Premises.
(g) Tenant Notification Agreements (the "Tenant Notices"),
dated the date of the Closing, executed by Seller, and complying
with applicable statutes in order to relieve Seller of liability for
tenant security deposits (provided the security deposits are paid or
otherwise transferred to Purchaser), notifying the Tenants that the
Property has been sold to Purchaser and directing the Tenants to pay
future rentals to Purchaser (or Purchaser's designated agent);
(h) a standard form owner's policy of title insurance issued
by the Title Company with respect to the Mall, together with such
customary endorsements and affirmative coverage as Purchaser shall
reasonably request, dated as of the Closing Date, subject only to
Permitted Encumbrances;
(i) (x)(a) tenant estoppel certificate executed by each Major
Tenant in the form attached hereto as Exhibit K; provided that to
the extent that a Major Tenant fails to provide an estoppel
certificate required to be delivered hereunder and Purchaser elects
to proceed with the Closing, Seller shall deliver an estoppel
certificate from Seller in the form attached hereto as Exhibit K
(the "Seller Estoppel"); plus (y) tenant estoppel certificates from
60% of the remaining Tenants (by base rent and by gross leasable
area) in the form attached hereto as Exhibit K, provided that to the
extent that such estoppel certificates are not delivered and
Purchaser elects to proceed with the Closing, Seller shall deliver a
Seller's Estoppel with respect thereto; plus (z) an estoppel
certificate executed by all Adjoining Owners in the form attached
hereto as Exhibit L; provided, however, that if Seller has delivered
estoppel certificates to Purchaser more than 5 days prior to
December 30, 1997 and Purchaser has not disapproved such
certificates in writing by December 30, 1997, such estoppel
certificates shall be deemed to satisfy the conditions specified in
this paragraph for the delivery thereof;
(j) an updated Rent Roll, in the form of the Rent Roll
attached hereto as Exhibit N, dated within 15 days of the date of
the Closing;
(k) to the extent in Seller's possession or at Seller's
disposal, the originals of all Leases, as-built plans and
specifications, Operating Agreements, Other Agreements, all
engineering and maintenance records related to the Mall and all
licenses, permits and certificates of occupancy for the Property or
the Improvements;
(l) an affidavit that Seller is not a "foreign person" in the
form attached as Exhibit O;
(m) a master key or duplicate key for all locks in the
Improvements;
(n) such title affidavits and other customary documents are
reasonably requested by the Title Company to issue the owner's title
policy described in paragraph (g) above;
(o) an executed original of the closing statement in form and
substance mutually agreeable to Seller and Purchaser;
(p) evidence of termination of the Management Agreement and
all other agreements encumbering the Mall other than the Leases, the
Operating Agreements and the Other Agreements; and
(q) a certificate of Seller certifying to Purchaser that,
subject to Sections 10.06 and 10.07, the representations and
warranties of Seller set forth herein are true and correct in all
material respects as of the Closing Date as if made on such date.
SECTION 5.03. Purchaser's Performance. At the Closing,
Purchaser will cause the Purchase Price to be paid to Seller, will execute
and deliver the Tenant Notices, the Assignment and Assumption of Leases,
the Assignment and Assumption of Other Agreements, the Assignment and
Assumption of Operating Agreements and the Bill of Sale. It is a
condition to Seller's obligations hereunder that on the Closing Date all
of Purchaser's representations and warranties shall be true and correct in
all material respects. It is a condition to Purchaser's obligations
hereunder that on the Closing Date all of Seller's representations and
warranties shall be true and correct in all material respects.
SECTION 5.04. Evidence of Authority; Miscellaneous. Both
parties will deliver to the Title Company and each other such evidence or
documents as may reasonably be required by the Title Company or either
party hereto evidencing the power and authority of Seller and Purchaser
and the due authority of, and execution and delivery by, any person or
persons who are executing any of the documents required hereunder in
connection with the sale of the Property. Both parties will execute and
deliver such
other documents as are reasonably required to effect the intent of this
Agreement.
ARTICLE VI
Prorations of Rents, Taxes, Etc.
At the Closing (except where a later date is specifically
provided for in this Article), the parties hereto shall adjust the items
set forth below as of 11:59 p.m. on the day preceding the Closing Date
(the "Adjustment Point"), and the net amount thereof shall be paid by
Purchaser to Seller, or credited by Seller to Purchaser, as the case may
be, at the Closing.
SECTION 6.01. Rents; Rents as and when Collected. Rents
shall be apportioned as and when collected. Any Rents collected by
Purchaser (which, for purposes of this Section 6.01, shall include Rents
collected by any property manager or other agent acting for Purchaser)
subsequent to the Closing (whether due and payable prior to or subsequent
to the Adjustment Point) shall be adjusted as of the Adjustment Point, and
any portion thereof properly allocable to periods prior to the Adjustment
Point, net of costs of collection properly allocable thereto, if any,
shall be paid by Purchaser to Seller promptly after the collection thereof
by Purchaser, but subject to the further provisions of this Section 6.01
in the case of Rents due prior to the Adjustment Point. If prior to the
Closing Seller shall have collected, or if subsequent to the Closing
Seller shall collect, any Rents (which, for the purposes of this
Section 6.01, shall include Rents collected by any property manager or
other agent acting for Seller) which are properly allocable in whole or in
part to periods subsequent to the Adjustment Point, the portion thereof so
allocable to periods subsequent to the Adjustment Point net of costs of
collection properly allocable thereto, if any, shall be credited to
Purchaser by Seller at the Closing or, if collected after the Closing,
promptly remitted by Seller to Purchaser. As used in this Section 6.01
the term "cost of collection" shall mean and include reasonable attorneys'
fees, a reasonable allocation of Seller's internal collection costs and
other costs incurred by Purchaser or Seller in collecting any Rents, but
shall not include (1) the regular fees payable to any property manager for
the Mall or (2) except for a reasonable allocation of Seller's internal
collection costs, the payroll costs of any employees of Seller, Purchaser
or its or their affiliates or
agents or any other internal costs or overhead of Seller or Purchaser.
6.1.1 One week prior to the Closing Seller shall deliver to
Purchaser (x) a list of all Tenants and Adjoining Owners which are
delinquent in payment of Rents as of such date, which list shall set forth
the amount of each such delinquency, whether such delinquency is (i) under
30 days, (ii) between 31 days and 60 days, (iii) between 61 days and 90
days or (iv) over 90 days and the nature of the amount due, and (y) a list
of each Tenant and Adjoining Owner which paid percentage or overage rent
based on sales or gross income during the fiscal year in which the Closing
Date occurs and the amount so paid by each such Tenant or Adjoining Owner
through the Adjustment Point. All amounts collected by Purchaser from
each delinquent Tenant or Adjoining Owner within 30 days after the
Closing, net of costs of collection, if any, shall be deemed to be in
payment of Rents (or the specific components of Rents) for the month in
which the Closing occurs, next in payment of Rents (or the specific
components of Rents) then due on account of any month after the month in
which the Closing occurs and finally in payment of delinquent Rents (or
the specific components of Rents) which are in arrears as of the first day
of the month in which the Closing occurs, as set forth on such list. All
amounts collected by Purchaser from each delinquent Tenant or Adjoining
Owner more than 30 days after the Closing, net of costs of collection, if
any, shall be deemed to be in payment of Rents (or the specific components
of Rents) then due on account of each month after the month in which the
Closing occurs, next in payment of Rents (or the specific components of
Rents) due for the months in which the Closing occurs and finally in
payment of delinquent Rents (or the specific components of Rents) which
are in arrears as of the first day of the month in which the Closing
occurs, as set forth on the aforesaid list. Any amounts collected by
Purchaser from each delinquent Tenant or Adjoining Owner which, in
accordance with the preceding two sentences, are allocable to the month in
which the Closing occurs (as adjusted as of the Adjustment Point) or any
prior month, net of costs of collection properly allocable thereto, if
any, shall be paid promptly by Purchaser to Seller.
6.1.2 Purchaser shall use commercially reasonable efforts to
bill and collect any delinquencies set forth on the list delivered by
Seller pursuant to subsection 6.1.1 for a period of one (1) year after the
Closing and the amount thereof, as, when and to the extent collected by
Purchaser, shall, if due to Seller pursuant to the
provisions of subsection 6.1.1, be paid by Purchaser to Seller, net of
costs of collection, if any, properly allocable thereto, promptly after
the collection thereof by Purchaser. In no event shall Purchaser be
obligated to institute any actions or proceedings or to seek the eviction
of any Tenant or Adjoining Owner in order to collect any such
delinquencies.
6.1.3 Following the Closing and upon Seller's written
request, Purchaser shall submit or cause to be submitted to Seller, within
30 days after the end of each calendar quarter up to and including the
calendar quarter ending on March 31, 1999, but only so long as any
delinquencies shall be owed to Seller, a statement which sets forth all
collections made by Purchaser from the Tenants and Adjoining Owners which
owe such delinquencies through the end of such calendar quarter. Seller
shall have the right from time to time following the Closing until 90 days
after receipt by Seller of the last quarterly statement required
hereunder, at Seller's expense, to examine and audit so much of the books
and records of Purchaser as relate to such delinquencies in order to
verify the collections reported by Purchaser in such quarterly statements.
6.1.4 Nothing contained in this Section 6.01 shall be deemed
to prohibit Seller, at its own expense, from instituting after the Closing
any actions or proceedings in its own name against any Tenant or Adjoining
Owner that is delinquent in the payment of $5,000 or more to Seller in
order to collect the amount of any delinquencies due in whole or in part
to Seller from such Tenant or Adjoining Owner; provided, however, that in
no event shall (1) Seller be entitled in any such action or proceeding to
seek to evict any Tenant or Adjoining Owner or to recover possession of
its space or (2) Seller be entitled to initiate or participate in any
involuntary bankruptcy or similar proceeding against any Tenant or
Adjoining Owner. Purchaser agrees not to waive or settle any delinquency
owed in whole or in part to Seller without the prior written consent of
Seller, which consent may be granted or withheld in Seller's sole
discretion.
6.1.5 With respect to that portion of the Rents which
constitute percentage or overage rents, or other amounts payable by
Tenants based upon the sales or gross receipts of such entities, the
following shall apply: (i) at the Closing and/or, in the case of
percentage or overage rents which are in arrears or are payable in other
than monthly installments, subsequent to the Closing,
percentage or overage rents shall be apportioned as provided in the other
subsections of this Section 6.01 in the case of Rents generally; and
(ii) following the end of the fiscal year on account of which such
percentage or overage rents are payable by each Tenant and receipt by
Purchaser of any final payment on account thereof due from such Tenant
(including, without limitation, any amount due as a result of an audit
conducted by Seller or Purchaser), Purchaser shall pay to Seller, net of
costs of collection and audit, if any, the excess, if any, of (x) the
amount of percentage or overage rents paid by such Tenant on account of
such entire fiscal year multiplied by a fraction, the numerator of which
is the number of months (including any fraction of a month expressed as a
fraction) of such fiscal year prior to the Adjustment Point and the
denominator of which is 12 or such lesser number of months (including any
fraction of a month expressed as a fraction) as may have elapsed in such
fiscal year prior to the expiration of the Lease in question over (y) all
amounts theretofore received by Seller on account of the percentage or
overage rents in question for such fiscal year. If in any case the amount
provided for in (y) above exceeds the amount provided for in (x) above,
Seller shall pay the amount of such excess to Purchaser upon demand. If
on the Closing Date Seller shall be conducting any audits of payments of
percentage or overage rents previously made by Tenants for fiscal years
prior to the ones in effect on the Closing Date, Seller shall have the
right to continue all such audits until completion thereof and to collect
and retain any amounts payable to Seller hereunder by reason thereof. A
schedule of all such audits in progress at the date hereof is annexed
hereto as Exhibit U. In addition, Seller shall have the right to initiate
any such audit within six months subsequent to the Closing.
6.1.6 With respect to that portion of Rents which are payable
on an annual, semi-annual or other non-monthly basis, Purchaser shall use
commercially reasonable efforts to bill and collect all such payments
which become due after the Closing, which payments, to the extent
allocable to periods prior to the Adjustment Period, shall be paid by
Purchaser to Seller promptly after receipt thereof, subject to costs of
collection, if any, properly allocable thereto. With respect to that
portion of Rents that are attributable to payment of expenses such as
common area/mall maintenance charges, merchants' or other association
charges or advertising and promotional charges, such Rents shall be
apportioned based upon which party paid or will pay the correlating
expenses for the relevant period. With respect to that portion of Rents
which are billed on an index-based formula or on an estimated basis during
the fiscal or other
period for which paid, at the end of such fiscal or other period Purchaser
shall determine whether the items in question have been overbilled or
underbilled. If Purchaser determines that there has been an overbilling
and an overbilled amount has been received, Seller shall, promptly after
request by Purchaser, pay to Purchaser the portion of such overbilled
amount which is allocable (as provided for such Rent in this Section 6.01)
to the period prior to the Adjustment Point, and promptly thereafter
Purchaser shall reimburse the entire overbilled amount to the Tenants
which paid the same. If Purchaser determines that there has been an
underbilling, the additional amount shall be billed by Purchaser to the
Tenants, and any amount received by Purchaser, net of costs of collection,
if any, to the extent allocable (as provided for such Rent in this
Section 6.01) to periods prior to the Adjustment Point shall promptly be
paid by Purchaser to Seller.
6.1.7 Notwithstanding anything to the contrary set forth in
this Section 6.01, Seller shall be entitled to receive, and Purchaser
shall pay to Seller promptly after the receipt thereof, net of costs of
collection, if any, properly allocable thereto, (i) all amounts payable by
Tenants on account of Impositions which, pursuant to the terms of
Section 6.02, it is Seller's obligation to pay and discharge, which
amounts shall be apportioned between Seller and Purchaser in the same
manner as the Impositions to which they relate and (ii) all amounts
payable by Tenants on account of utilities which, pursuant to the terms of
Section 6.02, it is Seller's obligation to pay and discharge, which
amounts shall be apportioned between Seller and Purchaser in the same
manner as the utilities to which they relate.
6.1.8 Any advance rental deposits or payments held by Seller
on the Closing Date and applicable to periods of time subsequent to the
Adjustment Point, and any security deposits held by Seller on the Closing
Date, together with interest thereon, if any, which, under the terms of
the applicable Leases, is payable to the Tenants thereunder, shall be paid
or credited to Purchaser at the Closing.
SECTION 6.02. Additional Items. At the Closing, the
following additional items shall be apportioned between the parties hereto
as of the Adjustment Point, with Seller to be obligated for or entitled to
amounts apportioned to the period through the Adjustment Point and
Purchaser to be obligated for or entitled to amounts apportioned to the
period following the Adjustment Point:
6.2.1 Impositions payable by Seller in respect of the Mall in
the calendar year 1998 regardless of the valuation date or lien affixation
date associated with such payments. In the case of special assessments
payable in installments specified in Exhibit W attached hereto, the
installment for the fiscal year in which the Closing Date occurs shall be
apportioned as at the Adjustment Point and Purchaser shall be responsible
for paying all subsequent installments thereof. If any Tenant in
occupancy at the Closing Date or Adjoining Owner is obligated to pay any
Impositions directly to the applicable taxing authority, such Impositions
shall not be apportioned. Any refund obtained by either Seller or
Purchaser of real estate taxes for which an apportionment is made pursuant
to this subsection 6.2.1, net of the costs of obtaining such refund and
the amount thereof payable to Tenants and Adjoining Owners, shall be
apportioned as of the Adjustment Point.
6.2.2 Water and sewer charges, if any, payable by Seller on
the basis of the period or periods for which the same are payable. If
there are water meters at the Mall, Seller shall furnish readings to a
date not more than thirty (30) days prior to the Closing Date, and the
unfixed meter charges and the unfixed sewer charges, if any, based thereon
for the intervening time shall be apportioned on the basis of such last
readings. Any water and sewer charges payable by Tenants in occupancy on
the Closing Date or Adjoining Owners directly to the equity or entities
furnishing such services shall not be apportioned.
6.2.3 Utilities and fuel payable by Seller, including without
limitation electricity and gas. Seller shall endeavor to have the meters
for such utilities read the day on which the Adjustment Point occurs and
will pay the bills rendered to it on the basis of such readings. If
Seller does not obtain such a meter reading with respect to any such
utility, the adjustment therefor shall be made on the basis of the most
recently issued bills therefor which are based on meter readings not
earlier than thirty (30) days prior to the Adjustment Point. Seller will
receive a credit in the full amount of any cash security deposits held by
any utility companies (with interest thereon, if any, in the amount
accrued on such security deposits) and shall assign to Purchaser at the
Closing all of Seller's right, title and interest in and to such security
deposits. Purchaser will make its own arrangements for any security bonds
required by any utility companies by Closing and
Seller will be entitled to cancel any bonds previously furnished. If fuel
oil, propane or other fuel is used at the Mall, Seller shall deliver to
Purchaser at the Closing statements of the suppliers of such fuel dated
within three days of the Adjustment Point setting forth the quantity of
fuel on hand and the cost paid by Seller therefor, and Purchaser shall pay
to Seller at the Closing the cost of such fuel (including taxes thereon,
if any) as shown on such statements. Charges for any utilities payable by
Tenants in occupancy on the Closing Date and Adjoining Owners directly to
the utility companies furnishing the same shall not be apportioned.
6.2.4 Charges payable by Seller under the Other Agreements.
6.2.5 Contributions payable by Seller to merchants' and other
associations, and to promotional activities at the Mall, including gift
certificates.
6.2.6 Any other items of income or expense of the Mall,
which, in accordance with generally accepted business practices, should be
apportioned between Seller and Purchaser.
All prorated items that are not subject to an exact
determination shall be estimated by the parties with prorations adjusted
to actual within 60 days after the Closing. The provisions of this
Article VI shall be Surviving Covenants.
ARTICLE VII
Loss due to Casualty or Condemnation
SECTION 7.01. Loss due to Condemnation. In the event of a
condemnation of all or a Substantial Portion (as hereinafter defined) of
the Land and Improvements which condemnation shall render a Substantial
Portion of the Land and Improvements untenantable or results in the
Property not having sufficient parking to comply with applicable law or
the specific requirement of any Lease or Operating Agreement, Purchaser
may, upon written notice to Seller given within ten (10) days of receipt
of notice of such event, cancel this Agreement, in which event the Escrow
Holder at Purchaser's request shall return the Deposit plus all interest
earned thereon, this Agreement shall terminate and neither party shall
have any rights or obligations hereunder except for the Surviving
Covenants. In the event
that Purchaser does not elect to terminate, or if the condemnation affects
less than a Substantial Portion and does not affect the parking area in
the manner described above, then this Agreement shall remain in full force
and effect, the Purchase Price shall not be reduced and Purchaser shall be
entitled to an assignment of all of Seller's share of the condemnation
award (net of (1) the costs of collection incurred to the Closing Date, if
any, and (2) if the condemnation is temporary, the portion of such award,
if any, attributable to the period from and after the Closing Date, after
deducting therefrom reasonable expenditures made by Seller as a result of
the related taking, but only to the extent such portion was paid to Seller
prior to the Closing Date). Notwithstanding the foregoing, Seller shall
be entitled to receive or retain out of such condemnation award any
reasonable amounts expended by Seller to restore or protect the Mall. In
no event shall Seller be obligated to repair or restore the Land or
Improvements. For purposes of this Section 7.01, a Substantial Portion
shall mean a condemnation of the Land and Improvements in excess of One
Million Dollars ($1,000,000) in value of the Property.
SECTION 7.02. Loss due to Casualty. In the event of
Substantial Loss or Damage (as hereinafter defined) to the Land and
Improvements by fire or other casualty, Purchaser, upon written notice to
Seller given within ten (10) days of receipt of notice of such event, may
cancel this Agreement in which event the Escrow Holder at Purchaser's
request shall return the Deposit plus all interest earned thereon to
Purchaser and this Agreement shall terminate and neither party shall have
any rights or obligations hereunder except for the Surviving Covenants.
In the event that Purchaser elects not to terminate, or if the casualty
results in less than Substantial Loss or Damage, then this Agreement shall
remain in full force, the Purchase Price shall be reduced by the amount of
any deductible or co-payment amount under the related insurance policy,
Purchaser shall be entitled to an assignment of all of the proceeds of
Seller's fire or other casualty insurance and Seller shall have no
obligation to repair or restore the Land or Improvements. Notwithstanding
the foregoing, Seller shall be entitled to receive or retain (i) out of
such casualty insurance proceeds, any reasonable amounts expended by
Seller to restore or protect the Mall and (ii) in the case of rental or
business interruption proceeds allocable to periods prior to the
Adjustment Point (apportioned consistent with Article VI), loss of rents
by reason of the fire or other casualty suffered by Seller prior to the
closing, which entitlement shall survive the Closing. At
the time of any assignment of insurance proceeds in accordance with this
Section, Seller shall notify Purchaser of any disputes between Seller and
the insurance carrier related to the claim giving rise to such proceeds.
Seller will reasonably cooperate with Purchaser in attempting to collect
such proceeds from the insurance carrier and if, in the reasonable
judgment of Purchaser, a collection action is necessary to obtain such
proceeds, the reasonable costs of such collection action will be paid by
Seller. For purposes of this Section 7.02, "Substantial Loss or Damage"
shall mean loss or damage to the Property the cost for repair of which
exceeds One Million Dollars ($1,000,000) of the value of the Property.
ARTICLE VIII
Maintenance of the Property
Between October 28, 1997 and the Closing, Seller shall operate
and maintain the Property (or caused the Property to be operated and
maintained) in the ordinary course of business and consistent with past
procedures and practices heretofore followed in connection with the
operation and maintenance of the Property.
Between October 28, 1997 and the Closing, Seller shall not
intentionally cause any lien or other encumbrances to attach to the
Property, other then the lien for taxes not yet due and payable or any
liens which Seller is contesting in good faith (provided that all liens
are released of record or are adequately insured by Closing), and Seller
shall not (i) lease any portion of the Property, (ii) terminate any Lease,
(iii) amend any Major Lease in any manner or amend any other Lease if the
effect thereof would be to reduce the Rent payable thereunder, increase
landlord's obligations in any material respect, give rise to an obligation
by Purchaser to pay any amounts in accordance with the last paragraph of
this Article or alter the use of the premises by the Tenant or
(iv) terminate any Operating Agreement or any Lease without first
obtaining Purchaser's written approval, which approval shall not be
unreasonably denied or delayed. Purchaser shall have ten (10) days from
the date Seller provides Purchaser with written notice of the business
terms of the new lease, or modification or termination of any existing
lease, together with any information reasonably requested by Purchaser
regarding such tenant, to approve or reject such lease, modification or
termination. If Purchaser fails to respond within said time
period, it shall be deemed to approve said lease, modification or
termination, as applicable.
Seller hereby agrees that it will be solely responsible for
paying all tenant improvement costs and leasing commissions incurred in
connection with any Lease entered into prior to October 28, 1997, whether
such costs or commissions are due and payable prior to or after the
Closing Date whether or not conditional as of the Closing Date upon
subsequent extension or renewal and Purchaser hereby agrees that it will
be solely responsible for paying all tenant improvement costs and leasing
commissions incurred in connection with any Leases entered into on or
subsequent to October 28, 1997, whether such costs or commissions are due
and payable prior to or after the Closing Date. The obligations of Seller
under this Article VIII shall be Surviving Covenants.
ARTICLE IX
Broker
Seller and Purchaser each represent to the other that it has
dealt with no agent or broker who in any way has participated as a
procuring cause of the sale of the Property. Each party agrees to defend,
indemnify and hold harmless the other party for any and all judgments,
costs of suit, attorneys' fees, and other reasonable expenses which the
other may incur by reason of any action or claim against such party or the
Property by any broker, agent, or finder with whom the indemnifying party
has dealt arising out of this Agreement or any subsequent sale of the
Property. The provisions of this Article IX shall be Surviving Covenants
hereunder and shall survive the Closing and any termination of this
Agreement.
ARTICLE X
Representations and Warranties
SECTION 10.01. Representations and Warranties of Seller.
Seller makes the following representations and warranties and agrees that
Purchaser's obligations under this Agreement are conditioned upon the
truth and accuracy of such representations and warranties in all material
respects, both as of this date and as of the date of the Closing, subject
to those limitations set forth in this Article X or otherwise in this
Agreement:
(a) (i) The Seller is not a party to, subject to or bound by
any agreement, contract, permit or other restriction of any nature, or any
judgment, order, statute, rule or regulation of any court, governmental
body, administrative agency or arbitrator, or any legal proceeding which
would prevent or be violated by, or under which there would be a default,
or which would result in creation of or claim of any lien, charge, or
encumbrance upon any of the Property as a result of any of the items set
forth below; and (ii) no registration or consent of, or payment of any
premium, fee or penalty to, any governmental authority or any other person
or entity, which has not been obtained or paid, is required for or will
arise out of any of the items set forth below:
(1) the execution, delivery and performance of this Agreement
or any other agreements, obligations or instruments referred to
herein or contemplated hereby; and
(2) the transfer and assignment to the Purchaser in accordance
with this Agreement of the Property and any agreements and
liabilities to which the Purchaser is taking subject or assuming
pursuant to this Agreement.
(b) Seller is a business trust, organized, existing, and in
good standing under the laws of the Commonwealth of Massachusetts, and has
all power and authority to conduct the business of the Property and to
enter into and perform its obligations hereunder under the laws of the
State of Minnesota.
(c) The execution and delivery of this Agreement and the
consummation of the transaction contemplated hereby have been duly
authorized by all necessary parties and no other proceedings on the part
of Seller are necessary in order to permit them to consummate the
transaction contemplated hereby. This Agreement has been duly executed
and delivered by Seller and (assuming valid execution and delivery by the
Purchaser) is a legal, valid and binding obligation of Seller enforceable
against it in accordance with its terms.
(d) With respect to the Leases:
(i) Exhibit N annexed hereto is a list of all of the Leases
in effect on the date of such exhibit. All of the information set
forth on Exhibit N is true, correct and complete. As of the date of
Exhibit N, there are no leases, licenses or other rights of
occupancy or use of any portion of the Mall granted by Seller or its
predecessors in title and remaining in effect as of the date of
Exhibit N other than the Leases set forth in said Exhibit. Except
as set forth in the estoppel certificates transmitted by a letter
dated December 16, 1997 from Seller to Purchaser, none of the Leases
has been modified, amended or supplemented (whether orally or in
writing). No Tenant has any option to purchase the Mall or a right
of first refusal in respect of the sale of the Mall to a third party
and no Tenant has the right to purchase any portion of the Mall;
(ii) True, correct and complete copies of the Leases, and all
amendments and supplements thereto, have heretofore been made
available and/or delivered to Purchaser for review;
(iii) Exhibit P annexed hereto is a true, correct and complete
list of Tenants that are delinquent in the payment of Rents as of
the date of said schedule, which schedule sets forth the information
specified in clause (x) of Section 6.1.1; and
(iv) Each of the Leases listed in Exhibit N is in full force
and effect as of the date hereof. Seller has received no written
notice from any Tenant under a Lease listed in Exhibit N which is
still outstanding (x) that Seller has defaulted in performing any of
its material obligations under such Lease or (y) that such Tenant is
entitled to any reduction in, refund of or counterclaim or offset
against, or is otherwise disputing, any Rents paid, payable or to
become payable by such Tenant thereunder or is entitled to cancel or
terminate such Lease or to be released of any of its material
obligations thereunder, except as set forth in Exhibit N. With the
exception of the delinquencies in the payment to Rents specified in
Exhibit P annexed hereto, to Seller's knowledge no material default
exists under any Lease by the Tenant thereunder. For purposes of
this Section 10.01(d)(iv) the term "Lease" does not include licenses
and concession agreements
which have original terms, including rights to renew or extend, of
less than six (6) months.
(e) With respect to the Operating Agreements:
(i) Exhibit C annexed hereto is a true, correct and complete
list of all documents which comprise all of the Operating
Agreements, setting forth the date of each such Operating Agreement
and each amendment or supplement thereto and the names of the
parties thereto;
(ii) True, correct and complete copies of the Operating
Agreements and all amendments and supplements thereto have
heretofore been made available and/or delivered to Purchaser for
review;
(iii) Each Operating Agreement is in full force and effect as
of the date hereof;
(iv) None of the Operating Agreements have been modified,
amended or supplemented (whether orally or in writing) except as set
forth in Exhibit C; and
(v) Seller has received no written notice from any party to
an Operating Agreement which is still in effect (x) that Seller has
defaulted in performing any of its obligations under such Operating
Agreement or (y) that such party is entitled to any reduction in,
refund of or counterclaim or offset against, or is otherwise
disputing, any Rents paid, payable or to become payable thereunder
by such party or is entitled to cancel or terminate such Operating
Agreement or to be released of any of its material obligations
thereunder, except as set forth in Exhibit M. Except as set forth
on Exhibit P, to Seller's knowledge no material default exists under
any Operating Agreement on the part of the other parties thereto.
There are no obligations of Seller under or in respect of any of the
Operating Agreements for leasing or similar commissions and there
are no unperformed obligations for the performance of work (or
payment of allowances in lieu thereof) in the nature of tenant
alterations under such agreements.
(f) With respect to the Other Agreements:
(i) Exhibit D annexed hereto is a true, correct and complete
list as of the date of such exhibit of all Other Agreements, setting
forth, with respect to such
Other Agreements, the date thereof and of each amendment or supplement
thereto, the name of each party thereto (other than Seller) and a brief
description of the services provided thereunder or property covered
thereby. Except as specifically identified in Exhibit D, each Other
Agreement can be terminated by Purchaser on not more than thirty (30)
days' notice without penalty;
(ii) True, correct and complete copies of the Other
Agreements, and all amendments and supplements thereto, have
heretofore been made available and/or delivered to Purchaser for
review; and
(iii) To Seller's knowledge, each of the Other Agreements is in
full force and effect on the date hereof, and Seller has received no
written notice from any party to any Other Agreement which is still
outstanding that Seller has defaulted in performing any of its
obligations under such Other Agreement, except as set forth in
Exhibit D. None of the Other Agreements listed on Exhibit D has
heretofore been amended or supplemented (whether orally or in
writing), except as set forth on Exhibit D.
(g) To Seller's knowledge, there is no condemnation
proceeding pending with regard to all or any part of the Property and
there is no such proceeding threatened or contemplated by any governmental
authority.
(h) Seller has not received written notice of any violation
of building, health, safety, pollution control, fire or similar law,
ordinance, order or regulation respecting the Property which has not
heretofore been complied with.
(i) There are no pending litigations or other proceedings
against Seller affecting the Mall in respect of which Seller has been
served with process or otherwise received written notice except for
(i) claims for death, personal injury, property damage or worker's
compensation for which the insurance carrier has been notified on a timely
basis and (ii) other litigations or proceedings shown on Exhibit Q annexed
hereto. Seller has no knowledge of any threatened litigation or
proceedings against Seller affecting the Mall except litigation of the
nature described in clause (i) above.
(j) Seller is not a "foreign person" as defined in the
Federal Foreign Investment in Real Property Tax Act of 1980 and the 1984
Tax Reform Act, as amended.
(k) The term "Hazardous Materials" means (i) toxic wastes,
hazardous materials, hazardous substances or other substances which are
defined, prohibited or regulated by, or listed in, any Federal, state or
local law or regulation addressing environmental protection or pollution
control matters, (ii) asbestos in friable condition or otherwise posing a
threat to human health, (iii) polychlorinated biphenyls (PCBs) and
(iv) oil, petroleum and their by-products. Except as may be specifically
disclosed in the reports listed on Exhibit R or in any written
environmental reports obtained by Purchaser, and except with respect to
cleaning fluids and similar substances which may be used in the routine
operation or maintenance of the Mall in accordance with Legal
Requirements, (A) Seller has not itself caused any Hazardous Materials to
be utilized or stored in or on the Mall, or to be disposed of thereat or
therefrom, except in accordance with the provisions of applicable laws and
(B) to Seller's knowledge, no Hazardous Materials are present in, on or
under the Mall at levels or in quantities or amounts which would be in
violation of, or would require investigation or cleanup under, applicable
laws. Seller has not received any written notice from any Governmental
Authority or other person or entity that any condition exists at the Mall
which constitutes or has resulted in a violation of any Legal Requirement
relating to Hazardous Materials or which requires investigation or cleanup
under any such Legal Requirements, or that any claim has been or may be
asserted against Seller by reason of any such violation.
(l) Seller has received a notice of proposed property taxes
with respect to the Mall for 1998 of $3,967,482.58. There are no unpaid
real estate taxes or special assessments with respect to the Mall except
taxes not yet due and payable.
(m) The financial statements attached as Exhibit V hereto
accurately and correctly reflect in all material respects the operation of
the Mall for the periods covered thereby.
SECTION 10.02. Representations and Warranties of Purchaser.
Purchaser makes the following representations and warranties and agrees
that Seller's obligations under this Agreement are conditioned upon the
truth and accuracy of such representations and warranties in all material
respects, both as of this date and as of the date of Closing:
(a) Purchaser is a corporation organized, existing and in
good standing under the laws of the State of Wyoming, and has all power
and authority to conduct the business of the Property and to enter into
and perform its obligations hereunder under the laws of the State of
Wyoming.
(b) The execution and delivery of this Agreement and the
consummation of the transaction contemplated hereby have been duly
authorized by all necessary parties and no other proceedings on the part
of Purchaser are necessary in order to permit them to consummate the
transaction contemplated hereby. This Agreement has been duly executed
and delivered by Purchaser and (assuming valid execution and delivery by
the Seller) is a legal, valid and binding obligation of Purchaser
enforceable against it in accordance with its terms.
SECTION 10.03. No Implied Representations. Purchaser
acknowledges that except as expressly set forth in this Agreement and in
the documents and instruments delivered by Seller to Purchaser, neither
Seller nor any agent or representative or purported agent or
representative of Seller has made, and Seller is not liable for or bound
in any manner by, any express or implied warranties, guarantees, promises,
statements, inducements, representations or information (including any
information set forth in offering materials heretofore furnished to
Purchaser) pertaining to the Mall or any part thereof, the physical
condition thereof, environmental matters, income, expenses or operation
thereof or of the Personal Property or Intangible Personal Property, the
uses which can be lawfully made of the same under applicable zoning or
other laws or any other matter or thing with respect thereto, including,
without limitation, any existing or prospective Leases, Operating
Agreements or Other Agreements. Without limiting the foregoing, Purchaser
acknowledges and agrees that, except as expressly set forth in this
Agreement and in the documents and instruments delivered by Seller at the
Closing, Seller is not liable for or bound by (and Purchaser has not
relied upon) any verbal or written statements, representations, real
estate brokers' "set-ups" or offering materials or any other information
respecting the Mall furnished by Seller or any broker, employee, agent,
consultant or other person representing or purportedly representing
Seller. Nothing contained in this Section 10.03 shall be deemed to
impair, limit or otherwise
affect Purchaser's rights under this Agreement in respect of the
representations, warranties and covenants of Seller set forth in this
Agreement and the other provisions hereof binding upon Seller.
SECTION 10.04. "As-Is" Purchase. Purchaser represents that
it has inspected the Mall, the physical and environmental condition and
the uses thereof and the fixtures, equipment and Personal Property
included in this sale to its satisfaction, that it has independently
investigated, analyzed and appraised the value and profitability thereof,
the creditworthiness of Tenants and Adjoining Owners and the presence of
Hazardous Materials, if any, in or on the Mall, that it has received
copies of and/or has reviewed the Leases, the Operating Agreements, the
Other Agreements and all other documents referred to herein, that it is
thoroughly acquainted with all of the foregoing and that Purchaser, in
purchasing the Mall, will rely upon its own investigations, analyses,
studies and appraisals and not upon any information provided to Purchaser
by or on behalf of Seller with respect thereto (except in each case to the
extent covered by any warranties or representations of Seller set forth in
this Agreement, the Seller Estoppel or in any other document or instrument
delivered by Seller in connection with the Closing). Purchaser agrees to
accept the Mall "as is" and in its condition as at the date hereof,
reasonable wear and tear and damage by fire or other casualty (subject to
the provisions of Article VII) between the date hereof and the Closing
Date excepted, and Purchaser shall assume the risk that adverse matters,
including, but not limited to, construction defects and adverse physical
and environmental conditions may not have been revealed by Purchaser's
investigations; and Purchaser, upon closing, shall be deemed to have
waived, relinquished and released Seller from and against any and all
claims, demands, causes of action, losses, damages, liabilities, costs and
expenses (including attorneys' fees and court costs) of any and every kind
or character, known or unknown, which Purchaser might have asserted or
alleged against Seller by reason of or arising out of any latent or patent
construction defects or physical conditions, violations of applicable laws
(including, without limitation, environmental laws) and any and all other
acts, omissions, events, circumstances or matters with respect to the
Mall, subject, however, to Purchaser's rights and remedies provided for in
this Agreement in the event of the breach of any of Seller's warranties,
representations or covenants contained herein, in Seller's estoppel
certificate or in any other document or instrument delivered by Seller in
connection with the Closing. Nothing contained
in this Section 10.04 shall be deemed to constitute a waiver by Purchaser
of its rights at law or in equity, if any (to the extent such rights are
not limited under any other applicable provision of this Agreement), to
seek contribution or other recourse against Seller in the event of a claim
asserted against Purchaser by a third party with respect to liabilities
arising from or relating to any circumstances or conditions which exist at
or in respect of the Mall prior to the Closing. Nothing contained in this
Section 10.04 shall be deemed to impair, limit or otherwise affect
Purchaser's rights under this Agreement in respect of the representations,
warranties and covenants of Seller set forth in this Agreement and the
other provisions hereof binding on Seller. The provisions of this
Section 10.04 shall survive the Closing.
SECTION 10.05. No Independent Investigation. All
representations and warranties made herein by Seller which are based on
Seller's knowledge are made, and are hereby acknowledged by the Purchaser
to be made, without independent investigation regarding the facts
contained therein, other than due inquiry of the Managing Agent for the
Mall, and are otherwise limited as provided in the definition of
"knowledge" or "notice".
SECTION 10.06. Effect of Estoppels. If prior to the Closing
a Tenant or Adjoining Owner provides to Purchaser an estoppel letter
addressed to Purchaser and delivered in response to a request made
pursuant to this Agreement which sets forth information with respect to
any item as to which Seller has made a representation or warranty or is
otherwise set forth in the Seller Estoppel, then Seller's representation
and warranty in respect of such information shall thereafter be null and
void and of no further force or effect, such representation and warranty
shall not be deemed to have been remade as of the Closing and Purchaser
shall rely solely on the information set forth in such estoppel letter.
SECTION 10.07. Survival of Seller's Warranties, etc.
(a) Except as otherwise provided in Section 10.06, all of Seller's
representations and warranties contained in this Article X as remade as of
the Closing as provided in Section 10.07(c) and subject to any
modifications thereof made in any certificate provided for in said
Section, and all certifications, representations and warranties made by
Seller in the Seller Estoppel, shall survive until 14 months after the
date of the Closing; provided, however, that (1) the representations and
warranties set forth in Section 10.01(k) shall survive until 18 months
after the
date of the Closing and (2) Seller's liability for any breach of such
warranties, representations and certifications shall not expire as to any
breach or alleged breach thereof if notice of such breach or alleged
breach is given by Purchaser to Seller prior to 14 months after the date
of the Closing (or, in the case of the representations and warranties set
forth in Section 10.01(k), 18 months after the date of the Closing) and,
if such notice is given, legal proceedings are instituted in respect of
such breach or alleged breach within one year after such notice is given.
(b) Notwithstanding anything to the contrary set forth in
this Article X, Seller shall have no liability to Purchaser for breach of
any warranty and representation set forth in this Article X or in the
Seller Estoppel or for breach by Seller of any of its agreements set forth
in Article VII unless and except to the extent that the damages due to
Purchaser by reason of all such breaches exceed $50,000, and in no event
shall Seller be liable to Purchaser for consequential damages in respect
of any such breach. For purposes of determining whether the dollar figure
set forth in the preceding sentence has been exceeded, Seller agrees that
damages arising from a breach of any warranty or representation with
respect to a Lease, Operating Agreement or Other Agreement shall be
calculated over the entire term (without giving effect to unexercised
renewals) of such Lease, Operating Agreement or Other Agreement.
(c) All of Seller's representations and warranties set forth
in this Article X shall be deemed to have been remade on and as of the
Closing Date, subject, however, to the provisions of Section 10.06 and
facts disclosed on the updated Exhibits to this Agreement which are to be
delivered by Seller to Purchaser at the Closing pursuant to Article V
(which updated Exhibits, upon their delivery by Seller to Purchaser, shall
for all purposes of this Agreement constitute the indicated Exhibit or a
part thereof); provided, however, that if any matter or event shall have
occurred between the date hereof and the date of the Closing which does
not result from any intentional act or omission of Seller (other than one
permitted under this Agreement), and which makes any such warranty or
representation untrue in any material respect as of the Closing Date,
Seller shall have the right to deliver a certificate to Purchaser at or
prior to the Closing which discloses such matter or event, and if Seller
does so, Seller shall not be liable to Purchaser following the Closing for
the breach of the warranty or representation in question which results
from the occurrence of such matter or
thing, but in no event shall Purchaser be obligated to close hereunder
unless the conditions precedent to Purchaser's obligation to close set
forth in this Agreement (including in Section 5.02) shall have been
fulfilled.
(d) Notwithstanding anything to the contrary set forth in
this Article X or elsewhere in this Agreement, if prior to the Closing
Purchaser has or obtains knowledge that any of Seller's warranties or
representations set forth in this Article X or Seller's certifications,
warranties or representations made in the Seller Estoppel, is untrue in
any respect, and Purchaser nevertheless proceeds with the Closing, then
the breach by Seller of the warranties, representations or certifications
as to which Purchaser shall have such knowledge shall automatically be
deemed waived by Purchaser and Seller shall have no liability to Purchaser
or its successors or assigns in respect thereof. For the purposes of this
Section 10.07(d), Purchaser shall be deemed to have or to have obtained
knowledge of any such matter or thing only if such matter or thing (i) is
set forth in any Lease, Operating Agreements, Other Agreement or estoppel
certificate which (or a copy of which) is stated in this Agreement to have
been delivered to and/or made available for review by Purchaser, (ii) was
contained in any written studies or reports furnished to Purchaser by any
third party consultants retained by it, (iii) was set forth in a letter,
memorandum or other written communication from Purchaser's attorney to
Purchaser in this transaction to Purchaser or (iv) was actually known
(without independent investigation) by, or was contained in a written
notice received by, John N. Foy or H. Jay Wiseman, Jr.
ARTICLE XI
Indemnification
SECTION 11.01. Seller's Indemnification. Seller hereby
indemnifies Purchaser (and its affiliates) for, and defends and holds
Purchaser (and its affiliates) harmless from and against, all costs,
losses, damages, penalties, liabilities and expenses, including without
limitation reasonable attorneys' fees and disbursements (collectively,
"Losses"), actually imposed upon or incurred by Purchaser (or any
affiliate thereof) by reason of claims accruing prior to the Closing Date
that are made by any person or entity for personal injury, death or
property damage relating to the Mall.
SECTION 11.02. Purchaser's Indemnification. Purchaser hereby
indemnifies Seller (and its affiliates) for, and defends and holds Seller
(and its affiliates) harmless from and against, all Losses actually
imposed upon or incurred by Seller (or any affiliate thereof) by reason of
claims accruing on or after the Closing Date made by any person or entity
for personal injury, death or property damage.
SECTION 11.03. Surviving Covenants. The provisions of this
Article XI shall be Surviving Covenants.
SECTION 11.04. No Limitations. Except as specifically
limited herein, nothing contained in this Article XI is in any way
intended to limit the rights of Seller or Purchaser to pursue any remedies
as may exist at law or in equity against any unrelated third parties with
respect to any liabilities covered by this Article XI.
ARTICLE XII
Inspection Period
Purchaser shall have until January 13, 1998 (the "Inspection
Period") to (i) determine whether the aggregate annual income payable to
the owner of the Property pursuant to the Leases and the Operating
Agreements that does not qualify under the REIT income test set forth in
Section 856(c)(2) of the Internal Revenue Code of 1986, as amended,
exceeds $100,000 and (ii) to conduct interviews of any and all tenants of
the Property. If Purchaser shall determine in its sole discretion that
the results of the determination described in (i) above are unsatisfactory
or that the results of interviews conducted pursuant to (ii) above are
unsatisfactory, in either such event prior to the end of the Inspection
Period, Purchaser may elect to terminate this Agreement and abandon the
transaction by written notice (a "Termination Notice") to Seller. Any
Termination Notice shall include reasonable detail as to the nature of the
conditions underlying Purchaser's determination. A Termination Notice
shall automatically become effective to terminate this Agreement unless
Seller, by delivery of written notice to Purchaser no more than three (3)
Business Days following Purchaser's delivery of a Termination Notice,
elects to suspend the effectiveness of any such Termination Notice by
agreeing to cure all of the matters specified in such Termination Notice
as the basis for Purchaser's termination within a period specified in such
written notice, provided that (i) such specified period shall in no
event be longer than 30 days and (ii) the matters specified in such
Termination Notice could reasonably be expected to be cured in all
material respects by Seller within such specified period. If such cure is
not effected to Purchaser's satisfaction (as determined in Purchaser's
sole discretion), as evidenced by a written acknowledgment of Purchaser,
on or prior to the end of such 30-day period, the Termination Notice shall
thereupon become automatically effective, this Agreement shall terminate
without any further action of the parties hereto. Upon the effectiveness
of any Termination Notice pursuant to this Article XII, the Deposit
(including any interest earned thereon) shall be immediately returned to
Purchaser by the Escrow Agent and Seller shall have no rights with respect
thereto.
ARTICLE XIII
Assignment
Purchaser shall not, without the prior written consent of
Seller, assign this Agreement or its rights hereunder, in whole or in
part, to any other person or entity other than to one controlled by CBL &
Associates Limited Partnership.
ARTICLE XIV
Notices
All notices hereunder or required by law shall be sent via
United States Mail, postage prepaid, certified mail, return receipt
requested, or via any nationally recognized commercial overnight carrier
with provisions for receipt or via personal delivery, addressed to the
parties hereto at their respective addresses set forth below or as they
have theretofore specified by written notice delivered in accordance
herewith:
Purchaser:
Development Options, Inc.
6148 Lee Highway, Suite 300
Chattanooga, TN 37421-2931
Attn: President
and
CBL & Associates Properties, Inc.
6148 Lee Highway, Suite 300
Chattanooga, TN 37421-2931
Attn: President
with a copy to:
Mary Ann Okrasinski, Esq.
CBL & Associates Properties, Inc.
6148 Lee Highway, Suite 300
Chattanooga, TN 37421-2931
Seller:
Corporate Property Investors
305 East 47th Street
New York, New York 10017
Attn: J. Michael Maloney
with a copy to:
Kevin J. Grehan, Esq.
Cravath, Swaine & Moore
825 Eighth Avenue
New York, NY 10019
Delivery will be deemed complete upon three business days
following deposit in U.S. Mail with respect to mailed notices and one
business day following deposit with a nationally recognized commercial
overnight carrier with respect to notices transmitted in that manner, but
in all events upon actual receipt or refusal to accept delivery.
ARTICLE XV
Expenses
Seller shall pay its own attorney's fees, the costs incurred
to repay any liens filed against the Real Property required to be removed
from title in accordance with the terms of this Agreement (other than
taxes and assessments which are not yet due and payable) and shall provide
to Purchaser an ALTA/ACSM survey of the Real
Property. Seller and Purchaser will each pay 50% of the Escrow Holder's
escrow fee, all standard title insurance premiums for an ALTA Owner's
title insurance policy and customary endorsements (excluding any premiums
or other costs incurred in connection with any mortgage financing), and
all recording fees, conveyance, transfer, and intangibles taxes.
Purchaser shall pay its due diligence expenses, including, but not limited
to, the cost of any environmental or engineering studies, it's own
attorney's fees, and any title policy premium or other costs required by
any mortgagee of Purchaser.
ARTICLE XVI
Miscellaneous
SECTION 16.01. Successors and Assigns. All the terms and
conditions of this Agreement are hereby made binding upon the executors,
heirs, administrators, successors and permitted assigns of both parties
hereto.
SECTION 16.02. Gender. Words of any gender used in this
Agreement shall be held and construed to include, any other gender, and
words in the singular number shall be held to include the plural, and vice
versa, unless the context requires otherwise.
SECTION 16.03. Captions. The captions in this Agreement are
inserted only for the purpose of convenient reference and in no way
define, limit or prescribe the scope or intent of this Agreement or any
part hereof.
SECTION 16.04. Construction. No provision of this Agreement
shall be construed by any Court or other judicial authority against any
party hereto by reason of such party's being deemed to have drafted or
structured such provisions.
SECTION 16.05. Entire Agreement. This Agreement constitutes
the entire contract between the parties hereto and there are no other oral
or written promises, conditions, representations, understandings or terms
of any kind as conditions or inducements to the execution hereof and none
have been relied upon by either party.
SECTION 16.06. Cure by Guarantor. Seller agrees that to the
extent Purchaser is afforded any right to cure any default by Purchaser
hereunder in accordance with Section 4.01(b), CBL & Associates Limited
Partnership, a
Delaware limited partnership, may exercise such right (but only during the
time period and to the extent Purchaser could have exercised such right).
SECTION 16.07. Original Document. This Agreement may be
executed by both parties in counterparts in which event each shall be
deemed an original.
SECTION 16.08. Governing Law. This Agreement shall be
construed, and the rights and obligations of Seller and Purchaser
hereunder, shall be determined in accordance with the laws of the State of
New York.
SECTION 16.09. Operating and Expense Statement. On or before
February 15, 1997, Seller shall provide to Purchaser, at Purchaser's
expense, such certifications from Seller's accountants as Purchaser may
reasonably require in order to meet Purchaser's financial reporting
obligations 35
under Federal securities laws. This provision shall be a Surviving
Covenant.
SECTION 16.10. No Third Party Beneficiary. The parties
hereto do not intend to confer any benefit hereunder on any person, firm,
corporation or other entity other than the parties hereto and their
permitted assigns.
SECTION 16.11. Exculpation. Corporate Property Investors is
the designation of the Trustees under a Declaration of Trust, as amended
and restated, on file with the Secretary of State of the Commonwealth of
Massachusetts, and neither the shareholders nor the Trustees, officers,
employees or agents of the Trust created thereby, nor any of their
personal assets, shall be liable hereunder, and all persons dealing with
the Trust shall look solely to the Trust estate for the payment of any
claims hereunder or for the performance hereof. In no event whatsoever
shall recourse be had or liability asserted against Purchaser's directors,
officers, employees, shareholders or agents or those of any designee of
Purchaser who shall take title to the Property pursuant to the terms of
this Agreement.
SECTION 16.12. No Recording; Confidentiality. (a) The
parties agree that neither this Agreement nor any memorandum or notice
hereof shall be recorded or filed in any public records. If Purchaser
violates the terms of this Article, Seller, in addition to any other
rights or remedies it may have, may immediately terminate this Agreement
by giving notice to Purchaser of its election so to do. The provisions of
this Article shall not be construed as
preventing Purchaser from filing a lis pendens against the Mall in the
event it institutes any litigation against Seller with respect to the
transaction provided for herein and, under applicable law, it is entitled
to file such lis pendens. The provisions of this Article shall survive
the Closing or any termination of this Agreement.
(b) Subject to disclosure obligations required by law, none
of Seller, Purchaser and their respective affiliates shall issue any press
release or otherwise make public any information with respect to this
Agreement or the transaction contemplated hereby prior to the Closing Date
without the prior written consent of the other party. None of Seller,
Purchaser and their respective affiliates shall discuss or disclose the
existence of the transaction contemplated hereby, the terms of this
Agreement or the identity of the parties hereto with any other person,
except for those employees, prospective lenders, advisors, attorneys,
consultants and other professionals required to implement the terms of
this Agreement or to assist in Purchaser's due diligence and who have
agreed to maintain the confidentiality of the transaction and the
information they receive, and except to the extent required by law.
SECTION 16.13. Waiver of Trial by Jury. Seller and Purchaser
waive any right to trial by jury of any claim arising under or with
respect to this Agreement, whether now existing or hereafter arising.
Seller and Purchaser hereby agree that any such claim shall be decided by
a court trial without a jury and that any party hereto may file an
original counterpart or a copy of this Section with any court as written
evidence of the consent of the other party hereto to waiver of its right
to trial by jury.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the day and year first above written.
DEVELOPMENT OPTIONS, INC., as
Purchaser,
by John N. Foy
--------------------------
Name: John N. Foy
--------------------------
Title: Executive Vice President
CORPORATE PROPERTY INVESTORS, as
Seller,
by J. Michael Maloney
--------------------------
Name: J. Michael Maloney
--------------------------
Title: Senior Vice President
Receipt of original copies of this Agreement executed by
Seller and Purchaser is acknowledged this 31st day of December, 1997.
FIRST AMERICAN TITLE INSURANCE
COMPANY, as Escrow Holder,
by Mindy B. Huas
--------------------------
Name: Mindy B. Huas
--------------------------
Title: Vice President
EXHIBIT E
Limited Warranty Deed
EXHIBIT G
BILL OF SALE
Burnsville Center
EXHIBIT H
Assignment of Leases
EXHIBIT I
Assignment of Operating Agreements
EXHIBIT J
ASSIGNMENT OF OTHER AGREEMENTS
Burnsville Center
EXHIBIT L
Operating
Agreement Estoppel Certificate
EXHIBIT O
CERTIFICATION OF
NONFOREIGN STATUS
EXHIBIT T
GENERAL
ASSIGNMENT
Burnsville Center
EXHIBIT W
Special Assessments
None.