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Exhibit 10.37
EXECUTION COPY
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THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES,
Seller,
and
CPI-PHIPPS LIMITED LIABILITY COMPANY,
Purchaser
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PURCHASE AND SALE AGREEMENT
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November 26, 1997
Premises:
Phipps Plaza, Atlanta, Georgia
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PURCHASE AND SALE AGREEMENT ("Agreement") made
this 26th day of November 1997 by and between THE
EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, a
New York corporation with an office at 1290 Avenue of
the Americas, New York, New York 10104 ("Equitable" or
"Seller"), as Seller, and CPI-PHIPPS LIMITED LIABILITY
COMPANY, a Delaware limited liability company with an
office at 305 East 47th Street, New York, New York 10017
("Purchaser"), as Purchaser.
W I T N E S S E T H :
WHEREAS Equitable is owner in fee (other than the improvements
operated by Saks Fifth Avenue (the "Saks Fifth Avenue Store")) of Phipps Plaza,
a regional shopping mall located in Atlanta, Georgia, which is more particularly
described in and is the subject of this Agreement.
WHEREAS Equitable desires to sell such shopping mall to Purchaser,
and Purchaser desires to purchase such shopping mall from Equitable, subject to
and upon all of 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:
"Adjustment Point" shall have the meaning set forth in Article VI.
"Anchor" shall mean Saks Fifth Avenue, Lord & Taylor, Parisian and
any other Tenant leasing an aggregate amount of space in the Mall in excess of
50,000 square feet of gross leasable area.
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"Appurtenances" shall mean all right, title and interest, if any, of
Equitable 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 but excluding the Development Impact Fee Credits.
"Bill of Sale" shall mean the bill of sale to the Personal Property
and the Intangible Personal Property to be delivered at the Closing as provided
in Section 7.01(b).
"Broker" shall have the meaning set forth in Section 15.01.
"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
Equitable to Purchaser provided for in Article V.
"Closing Date" shall have the meaning specified in Section 5.01.
"Deed" shall have the meaning set forth in Section 7.01(a).
"Deposit" shall have the meaning set forth in Section 3.01(a).
"Development Impact Fee Credits" shall mean those development impact
fee credits held by Equitable with respect to system or other improvements in
the vicinity of the Mall.
"Entitlements" shall mean all permits, zoning and/or land use
classifications and rights, site plan approvals, ordinances adopted with respect
to the Mall and adjoining properties, variances, certificates of occupancy or
other rights or entitlements relevant to the operation and future expansion of
the Mall, including any thereof
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relating to the streets, roads, utility services, water, sewage and all other
infrastructures necessary for the operation by Purchaser of the Mall.
"Equitable's Copy" or "Equitable's Copies" shall mean Equitable's
executed counterpart of the instrument in question or, if an executed
counterpart is not in Equitable's or the Managing Agent's possession, such
conformed or photostatic copies as may be in Equitable's or the Managing Agent's
possession, each of which shall be certified by Equitable or the Managing Agent
as being true and complete.
"ERE" shall mean ERE Yarmouth, the name under which Equitable Real
Estate Investment Management, Inc. now transacts business.
"Escrow Agent" shall have the meaning set forth in Section 3.02(a).
"Excepted Items" shall mean (i) all items of personal property owned
by Tenants, subtenants, independent contractors, business invitees or utilities;
(ii) all items of personal property not owned but leased by Equitable as
identified on Exhibit B annexed hereto; (iii) all cash on hand, checks, money
orders, prepaid postage in postage meters and subject to Article VI, accounts
receivable; (iv) the Agreement Regarding Special Public Interest District 12
(and the affected area) Development Goals dated as of July 8, 1997 between
Equitable and Buckhead Forest Civic Association, Inc. and (v) the Development
Impact Fee Credits.
"Exhibits" shall mean the exhibits attached to this Agreement (or
such other documents which are referred to in this Agreement as Exhibits and are
initialed for identification by the parties hereto), each of which shall be
deemed to form part of this Agreement whether or not so stated in this
Agreement. In the case of Exhibits D and G, the term "Exhibits" shall mean such
Exhibits as supplemented in accordance with Article VII.
"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.
"Impositions" shall mean all real estate and personal property
taxes, general and special assessments, water and sewer charges, license fees
and other fees and
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charges assessed or imposed by Governmental Authorities upon the Property, the
Intangible Personal Property and/or the 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 the Saks Fifth Avenue
Store, which is not owned by Seller.
"Income" shall have the meaning set forth in Section 3.02(a).
"Intangible Personal Property" shall mean all right, title and
interest of Equitable in and to all telephone numbers listed after the name of
the Mall, all names, trade names, designations, logos and service marks, and the
appurtenant good will, used in connection with operation of the Mall (other than
the names or variations thereof of Equitable, the Managing Agent and Tenants),
agreements to operate for specific periods, radius restriction agreements and
similar agreements made by Tenants and Anchors, whether in their Leases or in
separate agreements, and all similar items of intangible personal property owned
by Equitable and utilized solely in connection with the operation of the Mall
(excluding Excepted Items).
"knowledge" or "notice" when used in respect of Equitable shall
mean, without independent investigation other than inquiry of the Managing Agent
of the Mall, the actual knowledge or written notice received by any of Dexter
Warrior, Gene Conway and Michael McNamara.
"Land" shall mean the following: all those certain lots, pieces or
parcels of land situate, lying and being in the County of Fulton, State of
Georgia, more particularly described in Exhibit A annexed hereto and made a part
hereof.
"Leases" shall mean all ground leases, leases, licenses, concessions
and other forms of agreement, written or oral, however denominated, wherein
Equitable (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 or land comprising a part thereof, and all renewals,
modifications, amendments, guaranties and other agreements affecting the same,
the documents comprising which as at the date set forth in Exhibit G are listed
in said Exhibit.
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"Leasing Costs" shall have the meaning set forth in Section 6.02.
"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.
"Mall" or "Phipps Plaza" shall mean the Land, the Appurtenances, the
Improvements, the Personal Property, the Intangible Personal Property, the
Leases and the Other Agreements.
"Management Agreement" shall mean the agreement, as amended, for the
management and leasing of the Mall.
"Managing Agent" shall mean the manager at the time under the
Managing Agreement for the Mall.
"Master Mall/Office Tract" shall mean that certain tract or parcel
of land described on Exhibit A annexed hereto.
"Master Phipps Tract" shall mean the approximately 37.5 acre tract
of land on which the Mall is located.
"New Lease Notice" shall have the meaning specified in Section
13.04.
"Other Agreements" shall mean all contracts, agreements and
documents pertaining to the Mall to which Equitable or its predecessor in
interest is a party and by which Equitable is bound, other than the Management
Agreement and the Leases, and including without limitation, all service
contracts, operating agreements, reciprocal easement agreements, the agreements
contemplated by Sections 11.06 and 11.07, construction contracts, leases of
personal property, utility agreements and Entitlements, the documents comprising
which are listed in Exhibit D; provided, however, that "Other Agreements" shall
specifically exclude the Agreement Regarding Special Public Interest District 12
(and the affected area) Development Goals dated as of July 8, 1997 between
Equitable and Buckhead Forest Civic Association, Inc.
"Permitted Encumbrances" shall have the meaning set forth in Article
IV.
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"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 Equitable and located at and used in connection with
the ownership operation or maintenance of the Mall, and shall include the items
listed in Exhibit B.
"Property" shall mean the Land and the Improvements.
"Purchase Price" shall have the meaning set forth in Section 3.01.
"Recording Office" shall mean the appropriate office or offices in
the State of Georgia for the recording or filing of the documents to be
delivered at Closing which are to be recorded or filed therein in order to give
notice of the sale of the Mall to third parties.
"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.
"Tenants" shall mean the tenants, licensees, concessionaires or
other users or occupants under Leases.
"Title Company" shall mean First American Title Insurance Company.
"Violations" shall mean violations of Legal Requirements existing
with respect to the Mall.
ARTICLE II
Agreement To Sell and Purchase the Mall
Upon and subject to the terms and conditions of this Agreement,
Equitable agrees to sell and convey all of Equitable's right, title and interest
in and to the Mall to Purchaser and Purchaser agrees to purchase all of
Equitable's right, title and interest in and to the Mall from Equitable.
Equitable shall convey and Purchaser shall accept fee simple title to the Land
and Improvements in
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accordance with the terms of this Agreement, subject only to the Permitted
Encumbrances.
ARTICLE III
Purchase Price
SECTION 3.01. Purchase Price. The purchase price (the "Purchase
Price") for the Mall is One Hundred Eighty-eight Million Five Hundred Thousand
and no/100 Dollars ($188,500,000.00), and shall be payable as follows:
(a) One Million Nine Hundred Thousand and no/100 Dollars
($1,900,000) (the "Deposit") shall be paid by Purchaser to Escrow Agent within
one (1) Business Day after the date of this Agreement, such payment to be made
by wire transfer of immediately available federal funds to an account to be
designated by Escrow Agent.
(b) The balance of 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 Equitable prior to 2:00 p.m. Eastern
Standard Time on the Closing Date by wire transfer of immediately available
federal funds to an account designated by Equitable.
SECTION 3.02. Escrow Provisions. (a) The Title Company (referred to
in this Section and sometimes in other sections hereof as "Escrow Agent") shall
hold the Deposit in escrow in an interest-bearing bank account at The Chase
Manhattan Bank or in such other type or types of investments as may be agreed to
in writing by Equitable and Purchaser, until the Closing or such other time as
is specified herein, and shall pay over or apply the Deposit in accordance with
the terms of this Section 3.02. All interest or other income earned on the
Deposit (the "Income") shall be paid to or applied for the benefit of Purchaser
unless the Deposit is to be paid to Equitable as provided in Section 16.01, in
which case the Income shall be paid to Equitable. The party that receives the
Income or the benefit thereof shall be responsible for paying any income taxes
thereon. The tax identification numbers of the parties hereto shall be furnished
to Escrow Agent upon request.
(b) If the Closing occurs, the Deposit shall be paid to Equitable
and credited against the Purchase Price and the Income shall be paid to or at
the direction of Purchaser. If this Agreement is terminated pursuant to Section
16.01, the Deposit and the Income shall be paid to
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Equitable as liquidated damages. If the Closing does not occur for any reason
other than termination pursuant to Section 16.01, then the Deposit and the
Income shall be paid to Purchaser.
(c) Escrow Agent shall not be required to make any disposition of
the Deposit and the Income unless (i) Escrow Agent is directed to do so in
writing by Equitable and Purchaser or (ii) Escrow Agent is directed to do so in
writing by the party which claims to be entitled to receive the Deposit and the
Income and the other party does not object to such disposition within ten (10)
days after the giving of notice by Escrow Agent to such other party of such
direction or (iii) Escrow Agent is directed to do so by a final order or
judgment of a court as hereinafter provided. The notice given by Escrow Agent
pursuant to clause (ii) above shall state in capital letters that failure of the
addressee to object to the disposition of the Deposit described in such notice
within ten (10) days after the giving thereof shall constitute a waiver of the
addressee's right to contest or object to such disposition. In the event that
any dispute shall arise with respect to the entitlement of either party to the
Deposit and the Income, Escrow Agent shall continue to hold the Deposit and the
Income until otherwise directed by written instruction from Equitable and
Purchaser or a final order or judgment of a court of competent jurisdiction
entered in an action or proceeding to which Escrow Agent is a party. In
addition, in the event of any such dispute, Escrow Agent shall have the right at
any time to commence an action in interpleader and to deposit the Deposit and
the Income with the clerk of a court of appropriate jurisdiction in the State of
New York. Upon the commencement of such action and the making of such deposit,
Escrow Agent shall be released and discharged from and of all further
obligations and responsibilities hereunder. For the purposes of this Section
3.02(c), no dispute shall be deemed to exist as to the entitlement of either
party to the Deposit and Income if the party receiving notice from Escrow Agent
pursuant to clause (ii) of this Section 3.02(c) objects to disposition of the
Deposit and Income provided for in such notice more than ten (10) days after the
giving of such notice by Escrow Agent.
(d) The parties hereto acknowledge that Escrow Agent is acting
solely as a stakeholder at their request and for their convenience, that with
respect to the Deposit and the Income, Escrow Agent shall not be deemed to be
the agent of either of the parties hereto and that Escrow Agent shall not be
liable to either of the parties hereto for any act or omission on its part
unless taken or suffered in bad faith,
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in willful disregard of this Agreement or involving gross negligence on the part
of Escrow Agent. Escrow Agent may act upon any instrument or other writing and
upon signatures believed by it to be genuine, without any duty of independent
verification. Escrow Agent shall not be bound by any modification of this
Agreement unless the same is in writing and signed by the parties hereto and a
counterpart thereof is delivered to Escrow Agent and, if Escrow Agent's duties,
rights or liabilities hereunder are affected, unless Escrow Agent shall have
given its prior consent thereto in writing. Escrow Agent shall not be required
or obligated to determine any questions of law or fact. The parties hereto shall
jointly and severally indemnify and hold harmless Escrow Agent from and against
all costs, claims and expenses, including reasonable attorneys' fees and
litigation costs, incurred by Escrow Agent in connection with the performance of
its duties under this Section 3.02 (including, without limitation, in an
interpleader action or other litigation regarding the disposition of the Deposit
and the Income), except with respect to acts or omissions taken or suffered by
Escrow Agent in bad faith, in willful disregard of this Agreement or involving
gross negligence on the part of Escrow Agent.
(e) Escrow Agent shall have no liability for the selection of any
particular account or investment made by the parties hereto, for fluctuations in
the value of said account or investment, for the amount of Income earned on said
account or investment or for any loss incurred in connection therewith.
(f) Escrow Agent has acknowledged its agreement to the provisions of
this Section 3.02 by signing this Agreement, and Escrow Agent has executed this
Agreement solely for such purpose.
(g) References in succeeding provisions of this Agreement to the
Deposit shall be deemed to be references both to the Deposit and the Income.
ARTICLE IV
Permitted Encumbrances
The Mall is sold and shall be conveyed subject to the following
matters ("Permitted Encumbrances"):
(a) the matters set forth in Exhibit E annexed hereto and made a
part hereof;
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(b) liens for Impositions which are not due and payable as of the
Closing Date or which are apportioned in accordance with Article VI;
(c) liens for Impositions which are paid directly by Tenants in
occupancy on the Closing Date to the entity imposing same;
(d) zoning, sub-division, environmental, building and all other
Legal Requirements applicable to the ownership, use or development of or
the right to maintain or operate the Mall, or have space therein used and
occupied by Tenants, presently existing or enacted prior to the Closing;
(e) all Leases listed on Exhibit G annexed hereto, any extensions or
renewals of such Leases pursuant to options contained therein and any
extensions, renewals or amendments of such Leases or additional or
substituted Leases made between the date hereof and the Closing Date in
accordance with the provisions of Section 13.03 and/or Section 13.04, as
applicable;
(f) mechanics' liens against any Tenants in occupancy under Leases
which are in full force and effect on the Closing Date and which obligate
the Tenants thereunder to remove and discharge such liens at their
expense;
(g) the Other Agreements listed on Exhibit D, as the same may be
modified, terminated, renewed or additional Other Agreements entered into
in compliance with the provisions of Article XIII; and
(h) all other matters affecting title to the Mall which are
hereafter (A) approved in writing by Purchaser or deemed approved by
Purchaser in accordance with the terms of this Agreement or (B) waived by
Purchaser as provided in Article XIV.
ARTICLE V
The Closing
SECTION 5.01. Closing Date. The Closing shall be held at 10:00 a.m.
on December 12, 1997 (as the same may be adjourned or advanced pursuant to the
terms of this Agreement, the "Closing Date"), at the offices of Paul, Weiss,
Rifkind, Wharton & Garrison, 1285 Avenue of the
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Americas, New York, New York 10019. Time shall be of the essence with respect to
the Closing Date, subject to the following: (i) Purchaser shall have the right
to adjourn the Closing Date one or more times for an aggregate of not more than
thirty (30) days; (ii) Equitable shall have the right to adjourn the Closing
Date one or more times for an aggregate of not more than thirty (30) days to
cure exceptions to title, obtain estoppel letters or satisfy other closing
conditions; and (iii) such other extensions as are expressly provided for in
this Agreement. If either party elects to adjourn the Closing Date pursuant to
this Section 5.01, it shall do so on notice to the other given on or before the
Closing Date, as the same may have been previously adjourned.
SECTION 5.02. Actions at Closing. At the Closing, the parties shall
deliver and accept the documents and instruments and take all other action
required of them pursuant to this Agreement.
ARTICLE VI
Apportionments
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 Equitable, or credited
by Equitable to Purchaser, as the case may be, at the Closing.
SECTION 6.01. Rents. 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 the Managing Agent 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 Equitable 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
Equitable shall have collected, or if subsequent to the Closing Equitable shall
collect, any Rents (which, for the purposes of this Section 6.01, shall include
Rents collected by the Managing Agent or other agent acting for Equitable) which
are
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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 Equitable at the Closing or, if collected after the
Closing, promptly remitted by Equitable to Purchaser. As used in this Section
6.01 the term "costs of collection" shall mean and include reasonable attorneys'
fees and other costs incurred by Purchaser or Equitable in collecting any Rents,
but shall not include (1) the regular fees payable to any property manager for
the Mall or (2) the payroll costs of any employees of Equitable, Purchaser or
its or their affiliates or agents or any other internal costs or overhead of
Equitable or Purchaser.
(a) One week prior to the Closing Equitable shall deliver to
Purchaser (i) a list of all Tenants that are delinquent in payment of Rents as
at the Adjustment Point, which list shall set forth the amount of each such
delinquency, the period to which each such delinquency relates and the nature of
the amount due, itemizing separately fixed monthly rent, escalation charges or
reimbursements, common area maintenance, electric charges, charges for tenant
services, charges for overtime services, percentage rent and other charges, if
any, and (ii) a list of each Tenant that 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 through the Adjustment Point. All
amounts collected by Purchaser from each delinquent Tenant 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 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 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 the
aforesaid list. Any amounts collected by Purchaser from each delinquent Tenant
which, in accordance with the preceding
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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 Equitable.
(b) Purchaser shall use commercially reasonable efforts to bill and
collect any delinquencies set forth on the list delivered by Equitable pursuant
to Section 6.01(a) 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
Equitable pursuant to the provisions of Section 6.01(a), be paid by Purchaser to
Equitable, 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 in order to collect any such delinquencies.
(c) Following the Closing, Purchaser shall submit or cause to be
submitted to Equitable, within 30 days after the end of each calendar quarter up
to and including the calendar quarter ending on December 31, 1998, but only so
long as any delinquencies shall be owed to Equitable, a statement which sets
forth all collections made by Purchaser from the Tenants which owe such
delinquencies through the end of such calendar quarter. Equitable shall have the
right from time to time following the Closing until 90 days after receipt by
Equitable of the last quarterly statement required hereunder, at Equitable'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.
(d) Nothing contained in this Section 6.01 shall be deemed to
prohibit Equitable, at its own expense, from instituting any actions or
proceedings in its own name against any Tenant after the Closing in order to
collect the amount of any delinquencies due in whole or in part to Equitable
from such Tenant; provided, however, that in no event shall Equitable be
entitled in any such action or proceeding to seek to evict any Tenant or to
recover possession of its space. Purchaser agrees that prior to January 1, 1999,
it will not waive or settle any delinquency owed in whole or in part to
Equitable without the prior written consent of Equitable, which consent may be
granted or withheld in Equitable's sole discretion. From and after January 1,
1999, Purchaser may waive or settle any delinquency (other than any delinquency
as to which Equitable is conducting a litigation as of January 1, 1999)
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owed in whole or in part to Equitable without the prior written consent of
Equitable.
(e) 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 Equitable or Purchaser),
Purchaser shall pay to Equitable, 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 Equitable 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, Equitable shall pay the
amount of such excess to Purchaser upon demand. If on the Closing Date Equitable
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, Equitable shall have the right to continue all such audits until
completion thereof and to collect and retain any amounts payable by reason
thereof and in addition, Equitable shall have the right to initiate any such
audit within one year subsequent to the Closing. A schedule of all such audits
in progress at the date hereof is annexed hereto as Exhibit S. In addition,
Equitable shall have until December 31, 1998, to commence any audit of payments
of percentage or overage rents previously made by Tenants for the 1997 calendar
year or fiscal year ending January 31, 1998, and Equitable shall have the right
to continue all such audits until completion thereof and to collect and retain
any amounts payable by reason thereof.
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(f) 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 Equitable 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, Equitable 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
Equitable.
(g) Notwithstanding anything to the contrary set forth in this
Section 6.01, Equitable shall be entitled to receive, and Purchaser shall pay to
Equitable 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 6.03(a), it is
Equitable's obligation to pay and discharge, which amounts shall be apportioned
between Equitable 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 Sections 6.03(b) and/or 6.03(c), it is
Equitable's obligation to pay and discharge, which amounts shall be apportioned
between Equitable and Purchaser in the same manner as the utilities to which
they relate.
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(h) Any advance rental deposits or payments held by Equitable on the
Closing Date and applicable to periods of time subsequent to the Adjustment
Point, and any security deposits held by Equitable 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. Leasing Costs. Equitable shall pay and indemnify
Purchaser in respect of all leasing commissions, costs of tenant alterations and
improvements performed or to be performed for Tenants at the expense of the
landlord thereof (or allowances payable by the landlord in lieu thereof), moving
and other allowances and inducements, if any, and fees and disbursements of
architects, engineers and attorneys (collectively, "Leasing Costs") in respect
of (i) all Leases executed by or on behalf of all parties thereto prior to the
date of this Agreement other than any actual or proposed Lease identified on
Exhibit N and any Lease approved by Purchaser in accordance with Article XIII,
(ii) any renewal of any Lease executed by all parties thereto prior to the date
of this Agreement and not resulting from the exercise of any extension option by
the Tenant thereunder and (iii) any amendment to a lease increasing the space
demised thereby executed by all parties thereto prior to the date of this
Agreement. Purchaser shall and hereby does assume and agree to pay and indemnify
Equitable in respect of all Leasing Costs payable in respect of Leases, renewals
and amendments of the nature described in clauses (i), (ii) and (iii) above with
respect to the actual or proposed Lease identified on Exhibit N and any Lease
approved by Purchaser in accordance with Article XIII. If any Leasing Costs
shall be paid by Equitable prior to the Closing, which, in accordance with this
Section 6.02, it is Purchaser's obligation to pay, Purchaser shall reimburse
Equitable for the documented amount thereof at the Closing. Purchaser shall
receive credit at Closing for unpaid Leasing Costs that are Equitable's
obligation to pay to the extent such unpaid Leasing Costs can be identified at
Closing.
SECTION 6.03. Additional Items. At the Closing, the following
additional items shall be apportioned between the parties hereto as of the
Adjustment Point, with Equitable 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:
(a) Impositions payable by Equitable in respect of the Mall for the
calendar year 1997. In the case of
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special assessments payable in installments, the installment for the fiscal year
in which the Closing Date occurs shall be apportioned as of the Adjustment Point
and Purchaser shall be responsible for paying all subsequent installments
thereof. If any Tenant in occupancy at the Closing Date is obligated to pay any
Impositions directly to the applicable taxing authority, such Impositions shall
not be apportioned. Any refund obtained by either Equitable or Purchaser for
real estate taxes for which an apportionment is made pursuant to this Section
6.03(a), net of the costs of obtaining such refund and the amount thereof
payable to Tenants, shall be apportioned as of the Adjustment Point.
(b) Water and sewer charges, if any, payable by Equitable on the
basis of the periods for which the same are payable. If there are water meters
at the Mall, Equitable shall furnish readings to 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 directly to the entity or
the entities furnishing such services shall not be apportioned.
(c) Utilities and fuel payable by Equitable, including without
limitation electricity and gas. Equitable shall endeavor to have the meters for
such utilities read the day on which the Adjustment Period occurs and will pay
the bills rendered to it on the basis of such readings. If Equitable 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 therefore
which are based on meter readings not earlier than thirty (30) days prior to the
Adjustment Point. Equitable 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 Equitable'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 within 60 days following the Closing
Date, and Equitable will thereafter cancel any bonds previously furnished. If
fuel oil, propane or other fuel is used at the Mall, Equitable 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 Equitable therefor, and Purchaser shall pay to Equitable at
the Closing the cost of such fuel (including taxes thereon, if any) as shown on
such
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statements. Charges for any utilities payable by Tenants in occupancy on the
Closing Date directly to the utility companies furnishing the same shall not be
apportioned.
(d) Charges payable by Equitable under the Other Agreements.
(e) Ancillary income receivable by Equitable in connection with the
licensing of the name of the Mall to third parties, the furnishing of utilities
from the Mall to third parties, the leasing of kiosks, antennae, baby strollers
and other items and the like.
(f) Contributions payable by Equitable to merchants' and other
associations, and to promotional activities at the Mall.
(g) Any other items of income or expense of the Mall which, in
accordance with generally accepted business practices, should be apportioned
between Equitable and Purchaser.
SECTION 6.04. Adjustment Statement. Equitable will deliver to
Purchaser prior to the Closing a copy of proposed adjustment statement showing
all adjustments to be made at the Closing. The parties shall then endeavor to
agree upon such statement or any modification thereof so that it or such
modification can be executed by them at the Closing. To the extent that there is
an error or omission in any of the adjustments made pursuant to such statement
and the same is discovered following the Closing, the parties agree to rectify
the same as promptly as possible following such discovery.
SECTION 6.05. Survival. The provisions of this Article VI shall
survive the Closing.
ARTICLE VII
Documents To Be Delivered at the Closing
SECTION 7.01. Equitable's Deliveries. At or prior to the Closing,
Equitable will deliver or cause to be delivered to Purchaser each of the
instruments and documents listed in this Section 7.01, executed and acknowledged
where appropriate by Equitable and/or the other party or parties thereto, but
none of such instruments and documents shall be
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deemed delivered or any other action taken until all Closing deliveries and
actions are complete:
(a) A limited warranty deed (the "Deed") with respect to the
Property, in proper statutory form for recording, conveying the Property from
Equitable to Purchaser, subject to Permitted Encumbrances.
(b) A bill of sale transferring the Personal Property to Purchaser,
which bill of sale shall contain no warranties, express or implied, by Equitable
except that Equitable owns the Personal Property and the Intangible Personal
Property transferred thereby, free and clear of all liens or encumbrances except
for Permitted Encumbrances.
(c) An assignment by Equitable to Purchaser, in the form annexed
hereto as Exhibit J, of all of the landlord's right, title and interest in, to
and under all the Leases, and in and to all security deposits and any interest
thereon which, under the terms of the applicable Leases, is payable to the
Tenants thereunder.
(d) An assignment by Equitable to Purchaser, in the form annexed
hereto as Exhibit K, of all of the owner's right, title and interest in, to and
under all Other Agreements.
(e) A "General Assignment" by Equitable to Purchaser, in the form
annexed hereto as Exhibit L, of all of Equitable'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 and all names, trade names, trademarks, service marks and logos (and
all good will associated therewith) by which the Mall or any part thereof may be
known or which may be used in connection therewith, together with all
registrations, if any, for the same and other intangible property relating
thereto, and all telephone numbers and listings employed in connection with the
Mall, (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
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expansion or renovation, and any feasibility or marketing studies prepared by
third parties for Equitable or any affiliate of Equitable, (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.
(f) The estoppel letters provided for in Article XVII.
(g) Consents from third parties, if any, as indicated on Exhibit D
annexed hereto, which are required to the assignment of any material Other
Agreement, dated within 45 days prior to the Closing Date.
(h) Equitable's Copies of the Leases.
(i) Equitable's Copies of the Other Agreements.
(j) An executed copy of an agreement between Equitable and the
Managing Agent terminating its Management Agreement as of the Closing Date.
(k) Notices to Tenants notifying each of them of the sale of the
Mall to Purchaser as of the Closing Date, in a form reasonably satisfactory to
Purchaser.
(l) A supplement to the schedule of Leases annexed hereto as Exhibit
G which shows all Leases terminated and/or amended and all new Leases entered
into between the date of Exhibit G annexed hereto and the Closing Date, together
with Equitable's Copy of each such new Lease or amendment to an existing Lease.
(m) The list provided for in Section 6.01(a).
(n) A supplement to the schedule of Other Agreements annexed hereto
as Exhibit D, showing all Other Agreements terminated and/or amended and all new
Other Agreements entered into between the date of Exhibit D annexed hereto and
the Closing Date, together with Equitable's Copy of each such new Other
Agreement or amendment to an existing Other Agreement.
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(o) A schedule setting forth all tenant alterations which are
required to be performed by Equitable (whether or not at its expense) pursuant
to the Leases listed in Exhibit G, as updated pursuant to Section 7.01(l), in
order to prepare space for occupancy by Tenants which have not been completed,
and all allowances payable by Equitable to such Tenants in lieu of such work
which have not been paid.
(p) The certificate of Equitable provided for in Section 8.06(c), if
Equitable elects to deliver such certificate to Purchaser.
(q) A certificate that Equitable is not a "foreign person" within
the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended.
(r) Counterparts of the adjustment statement provided for in Section
6.04 showing all adjustments in respect of the Purchase Price to be made at the
Closing.
(s) All sales tax, transfer tax and other tax returns, if any, which
Equitable is required by law to execute and deliver, either individually or
together with Purchaser, to any Governmental Authority as a result of the sale.
(t) A copy of the resolutions of the Investment Committee or
Separate Account Committee of the Board of Directors of Equitable, certified to
by the secretary or an assistant secretary of Equitable, which authorize (i) the
transactions contemplated by this Agreement and (ii) the execution by Equitable
of this Agreement and the documents, instruments and Agreements to be executed
and delivered by Equitable pursuant hereto, together with an incumbency
certificate as to the authority of the person(s) executing and delivering this
Agreement and such documents, instruments and Agreements on behalf of Equitable.
(u) A good standing certificate from the Insurance Department of the
State of New York for Equitable, dated within 15 days of the Closing Date, and
good standing certificates issued in respect of Equitable by the Secretary of
State of Georgia, dated within 30 days of the Closing Date.
(v) All records and files which are in the possession or control of
Equitable, ERE or the Managing Agent relating to the operation and maintenance
of the Mall, including without limitation, to the extent in the possession of
such parties, (i) current tax bills, current
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water, sewer, utility and fuel bills, payroll records and billing records for
Tenants, (ii) repair and maintenance records and the like which affect or relate
to the Mall, (iii) plans, drawings, blueprints and specifications for the Mall
and all warranties and guarantees of manufacturers, suppliers and contractors in
effect on the Closing Date, (iv) certificates of occupancy and other licenses
and permits, (v) all of the items of property covered by the documents specified
in Sections 7.01(b) and 7.01(e) and (vi) keys to the Mall. Delivery of such
materials shall be effectuated pursuant to arrangements made by the Managing
Agent for the Mall and the property manager retained by Purchaser to operate the
Mall.
(w) All documents reasonably requested by the Title Company in order
to enable Purchaser to obtain title insurance in the form required by Section
11.05 hereof, together with such extended coverage and/or other endorsements to
such title insurance policies as may be required by Purchaser, including,
without limitation, a lien waiver from Broker and such instruments as shall be
required by the Title Company to insure title to the Mall without exception for
mechanic's liens which could be filed as a result of actions by Equitable, but
only provided that such documents do not expose Equitable to any material
expense or liability not already provided for in this Agreement.
(x) All other instruments and documents, if any, to be executed,
acknowledged and/or delivered by Equitable pursuant to any of the other
provisions of this Agreement or which are reasonably requested by Purchaser.
(y) Such affidavits and other documents as shall be required (in
Purchaser's sole judgment) to lawfully exempt Purchaser from the withholding
requirements of Section 48-7-128 of the Official Code of Georgia (failing which
Purchaser shall be fully authorized to withhold and pay to the appropriate
taxing authority the amounts required to be withheld pursuant to said Section
48-7-128).
SECTION 7.02. Purchaser's Deliveries. At or prior to the Closing,
Purchaser will deliver or cause to be delivered to Equitable or the other
parties indicated below each of the payments, documents and instruments listed
in this Section 7.02, such instruments and documents to be executed and
acknowledged where appropriate:
(a) The balance of the Purchase Price as set forth in Section
3.01(b), as such balance may be reduced or increased pursuant to Article VI or
any other applicable provision of this Agreement.
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(b) All sales tax, transfer tax and other tax returns, if any,
certificates of value and similar documents which Purchaser is required by law
to execute and deliver, either individually or together with Equitable, to any
Governmental Authority as a result of the sale.
(c) Counterparts of each of the instruments and documents listed in
Sections 7.01(c), 7.01(d) and 7.01(r).
(d) A copy of resolutions or a consent of the Trustees or the
Investment Committee of the member of Purchaser which authorize (i) the
transactions contemplated by this Agreement, and (ii) the execution of this
Agreement and the documents, instruments and Agreements to be executed and
delivered by Purchaser pursuant hereto, together with an incumbency certificate
as to the authority of the person(s) executing and delivering this Agreement and
such documents, instruments and Agreements on behalf of Purchaser.
(e) A good standing certificate from the Secretary of State of the
State of Delaware for Purchaser, dated within 15 days of the Closing Date.
(f) All other payments, instruments and documents, if any, to be
executed, acknowledged and/or delivered by Purchaser pursuant to any of the
other provisions of this Agreement.
SECTION 7.03. Access to Records. Purchaser agrees for a period of
seven (7) years following the Closing Date to retain and make available to
Equitable or to any Governmental Authority having jurisdiction over Equitable
for inspection and copying, at Equitable's expense, on reasonable advance notice
at reasonable times at the place in the continental United States where
Purchaser then maintains its records in respect of the Mall, all documents and
records concerning the Mall delivered by Equitable to Purchaser, actually or
constructively, in connection with the Closing. If Purchaser desires to destroy
any such records prior to the expiration of such seven (7) year period,
Purchaser shall first notify Equitable and permit Equitable to take delivery of
the records in question at its sole cost and expense; and if Equitable declines
to do so, Purchaser shall then be free to destroy the same. The provisions of
this Section 7.03 shall survive the Closing.
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ARTICLE VIII
Mall Conveyed As Is; Representations
and Warranties of Equitable
SECTION 8.01. No Implied Representations. Purchaser acknowledges
that except as expressly set forth in this Agreement and in the documents and
instruments delivered by Equitable at the Closing, neither Equitable nor any
agent or representative or purported agent or representative of Equitable has
made, and Equitable is not liable for or bound in any manner by, any express or
implied warranties, guarantees, promises, statements, inducements,
representations or information (including, without limitation, 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 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 Equitable at the Closing, Equitable 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 Equitable or
any broker, employee, agent, consultant or other person representing or
purportedly representing Equitable. Nothing contained in this Section 8.01 shall
be deemed to impair, limit or otherwise affect Purchaser's rights under this
Agreement in respect of the representations, warranties and covenants of
Equitable set forth in this Agreement and the other provisions hereof binding
upon Equitable.
SECTION 8.02. "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 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 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
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Mall, will rely upon its own investigations, analyses, studies and appraisals
and not upon any information provided to Purchaser by or on behalf of Equitable
with respect thereto (except in each case to the extent covered by any
warranties or representations of Equitable set forth in this Agreement, in any
Seller's Estoppel Letters (as defined in Section 17.02) or in any other document
or instrument delivered by Equitable 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 XII) 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 Equitable 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 Equitable 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 Equitable's
warranties, representations or covenants contained herein, in any Seller's
Estoppel Letter or in any other document or instrument delivered by Equitable in
connection with the Closing. Nothing contained in this Section 8.02 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
Equitable 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 8.02 shall be deemed to impair, limit or
otherwise affect Purchaser's rights under this Agreement in respect of the
representations, warranties and covenants of Equitable set forth in this
Agreement and the other provisions hereof binding on Equitable. The provisions
of this Section 8.02 shall survive the Closing.
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SECTION 8.03. Representations and Warranties of Equitable. Equitable
hereby represents and warrants to Purchaser as follows:
(a) Equitable is a corporation duly organized, validly existing and
in good standing under the laws of the State of New York. Equitable has full
power and authority to enter into this Agreement and to perform its obligations
hereunder in accordance with the terms hereof. The execution, delivery and
performance by Equitable of this Agreement and the documents to be executed by
Equitable pursuant hereto have been duly and validly authorized by all necessary
corporate action on the part of Equitable. This Agreement constitutes the legal,
valid and binding obligation of Equitable, enforceable against Equitable in
accordance with its terms, subject as to enforceability to the effect of
applicable bankruptcy, insolvency, reorganization, arrangement, moratorium,
fraudulent conveyance or other similar laws affecting the rights of creditors
generally and to general principles of equity. No bankruptcy, insolvency,
reorganization, liquidation, arrangement or moratorium proceeding or allegation
of fraudulent conveyance is now pending or, to Equitable's knowledge, threatened
against Equitable or the Mall.
(b) Equitable is not a "foreign person" as defined in Section 1445
of the Internal Revenue Code of 1986, as amended.
(c) Execution by Equitable of this Agreement and all documents
provided for herein to be executed by Equitable, and performance by Equitable of
the provisions hereof and thereof, will not (i) violate or result in any breach
of, or constitute a default under, any law, regulation, rule, order or judgment
of any governmental authority to which Equitable is subject, or any agreement,
indenture, mortgage, deed of trust, bank loan, credit agreement or other
instrument to which Equitable is a party or by which Equitable is bound, where
such breach or default might adversely affect Equitable's ability to perform its
obligations hereunder or under such other documents or (ii) require any approval
or consent which has not been obtained of any Governmental Authority or any
Tenant or (iii) require any approval or consent or other action by any pension
or retirement plan which has an interest in Equitable's Separate Account No.
16-VII or any other person which has not been obtained or taken. Equitable is
not in default under any note, evidence of indebtedness, lease, contract,
license, undertaking or other Agreement where the liability thereunder might
adversely affect Equitable's
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ability to perform its obligations under this Agreement or any document executed
by Equitable pursuant hereto.
(d) With respect to the Leases:
(i) Exhibit G annexed hereto is a list of all of the Leases in
effect on the date of such exhibit setting forth, with respect to each
Lease: (A) the date thereof and the date of each amendment or supplement
thereto; (B) the name of the current Tenant thereunder; (C) the premises
demised thereby; (D) the current term of each Lease, including
commencement date and expiration date; (E) the amount, if any, of the
security deposit held by Equitable thereunder; (F) the number of square
feet of rentable or gross leasable area, as applicable; (G) the fixed rent
currently payable under such Lease and the percentage rent percentage and
breakpoint with respect to such Lease; (H) noting (by "y" or "n") whether
any exclusive rights have been granted to the Tenant; and (I) in the case
of the Anchors, the commencement date and expiration date of the operating
covenant, if any. All of the information set forth on Exhibit G is true,
correct and complete. As of the date of Exhibit G, there are no leases,
licenses or other rights of occupancy or use of any portion of the Mall
granted by Equitable or its predecessors in title other than the Leases
set forth in said Exhibit. None of the Leases has been modified, amended
or supplemented (whether orally or in writing) except as set forth in
Exhibit G. 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 M 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 (i) of Section 6.01(a).
(iv) Except as set forth in Exhibit G annexed hereto, each of
the Leases listed in Exhibit G is in full force and effect as of the date
hereof. Equitable has received no written notice from any Tenant under a
Lease listed in Exhibit G which is still outstanding
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(x) that Equitable 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 G. With the exception of the delinquencies in the payment
to Rents specified in Exhibit M annexed hereto, to Equitable's knowledge
no material default exists under any Lease by the Tenant thereunder except
as set forth in Exhibit G. For purposes of this Section 8.03(d)(iv) the
term "Lease" does not include licenses and concession agreements which
have original terms, as they may be extended by renewal rights, of less
than six (6) months.
(v) All leasing commissions in respect of the Leases listed in
Exhibit G which were entered into before, and in respect of the terms in
effect on the Execution Date (including in respect of any renewals)
extensions or amendments thereof), have been, or by the Closing Date will
have been, paid in full by Equitable.
(vi) All tenant alterations which are required to be performed
by Equitable at its expense pursuant to the Leases listed in Exhibit G on
or prior to the date hereof in order to prepare space for occupancy by
Tenants have been performed by Equitable, and all allowances payable to
such Tenants in lieu of such work which were payable in respect of such
Leases prior to the date hereof have been paid.
(e) 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 affecting the
Mall, 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 Equitable) 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
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thereto, have heretofore been made available and/or delivered to Purchaser
for review.
(iii) To Equitable's knowledge, each of the Other Agreements
is in full force and effect on the date hereof, and Equitable has received
no written notice from any party to any Other Agreement which is still
outstanding that Equitable 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.
(f) Equitable has not received (i) any written notice of any
Violation with respect to the Mall from any Governmental Authority which has not
heretofore been complied with except as set forth in Exhibit H, or (ii) any
written notice from any Governmental Authority which is still outstanding of any
failure by Equitable to obtain any certificate, permit, license or approval with
respect to the Mall, or any intended revocation, modification or cancelation of
any of the same; and to Equitable's knowledge no notice of the nature described
in this Section 8.03(f) is about to be issued.
(g) No condemnation, eminent domain, zoning, land-use or similar
proceeding in which Equitable has been served with process or of which Equitable
has otherwise received written notice is pending with respect to all or any part
of the Mall or access thereto, and Equitable has no knowledge that any such
proceeding is threatened or contemplated.
(h) Equitable has not received any written notice which is still
outstanding of any violation of any restriction, condition, covenant or
agreement contained in any easement, restrictive covenant or any similar
instrument or agreement which constitutes a Permitted Encumbrance.
(i) There are no pending litigations or other proceedings against
Equitable affecting the Mall in respect of which Equitable has been served with
process or otherwise received written notice except for (i) claims for personal
injury, property damage or worker's compensation for which the insurance carrier
has been notified on a timely basis and has not disclaimed liability or reserved
its rights and in which the amounts claimed do not exceed the applicable
insurance policy limits and (ii) other litigations or proceedings shown on
Exhibit I annexed hereto. Equitable has no knowledge of any threatened
litigation or proceedings
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against Equitable affecting the Mall except litigation of the nature described
in clause (i) above.
(j) All fixtures, equipment and articles of personal property
attached or appurtenant to or used in connection with the Mall and located
thereat, except those belonging to Tenants, subtenants of Tenants and
independent contractors or utility companies, and items which are leased by
Equitable, are owned or leased by Equitable, free from all liens and
encumbrances (other than, in the case of leased property, the lessor's interest
therein and any encumbrance on such lessor's interest), and Equitable's interest
therein is included in this sale and shall be deemed conveyed from Equitable to
Purchaser at the Closing. A schedule of the material items of such personal
property, which in any event includes all items of such personal property having
a cost of $5,000 or more, is attached hereto as Exhibit B, which Exhibit
separately identifies any leased personal property, the leases for which are
listed on Exhibit D annexed hereto.
(k) Equitable has no employees or agreements with any employees who
will continue performing services after the Closing in connection with the
operation of the Mall. All persons who regularly perform services at the Mall
are employees of the Managing Agent or other independent contractors.
(l) Exhibit F annexed hereto lists all environmental reports
relating to asbestos (whether or not friable and whether or not posing a threat
to human health) or other Hazardous Materials at the Mall which Equitable caused
to be prepared or otherwise has in its possession dated after January 1, 1986,
each of which has heretofore been delivered to Purchaser. As used herein, 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 F or in
any 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)
Equitable 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
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accordance with the provisions of applicable laws and (B) to Equitable'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. Equitable 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 Equitable by reason of any such
violation.
(m) Equitable has not received any written notice from any insurer
of the Mall requiring any work to be performed as a condition to the renewal of
any insurance policy carried by Equitable in respect thereof which has not
heretofore been complied with.
(n) Except as set forth on Exhibit F, no structural or other
engineering reports dated after January 1, 1989 by a third party engineer
relating to the condition or structural soundness of the entire Mall are in the
possession or control of Equitable.
(o) The financial statements described on Exhibit C annexed hereto
have previously been delivered to Purchaser and fairly present the results of
operations and changes in financial position of the subjects thereof for the
periods referred to therein, in each case in accordance with generally accepted
accounting principles consistently applied throughout the periods involved.
(p) The property to be conveyed and transferred to purchaser at the
Closing constitutes all of the real property, personal property and other
property owned or leased or otherwise used by Equitable in connection with its
ownership and operation of the Mall, except for the Excepted Items.
(q) Equitable has not entered into any letter of intent with any
Tenant which occupies or will occupy more than 10,000 square feet of gross
leasable area in the Mall with respect to the entering into, amendment or
termination of any Lease.
SECTION 8.04. No Independent Investigation. All representations and
warranties made herein by Equitable which are based on Equitable's knowledge are
made, and are hereby acknowledged by the Purchaser to be made, without
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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 8.05. Effect of Estoppels. If prior to the Closing a Tenant
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 Equitable has made a
representation or warranty, then Equitable'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. Nothing contained in this Section 8.05 shall
affect or negate Purchaser's right to refuse to proceed with the Closing as
provided in Section 17.03.
SECTION 8.06. Survival of Equitable's Warranties, etc. (a) Except as
otherwise provided in Section 8.05, all of Equitable's representations and
warranties contained in this Article VIII (other than those contained in
Sections 8.03(a), 8.03(b) and 8.03(c), which shall survive the Closing without
limitation as to time), as remade as of the Closing as provided in Section
8.06(c) and subject to any modifications thereof made in any certificate
provided for in said Section, and all certifications, representations and
warranties made by Equitable in any Seller's Estoppel Letter delivered by
Equitable to Purchaser, shall survive until 12 months after the date of the
Closing; provided, however, that Equitable'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 Equitable prior to 12 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 (1) year after such notice is given.
(b) Notwithstanding anything to the contrary set forth in this
Article VIII, Equitable shall have no liability to Purchaser for breach of any
warranty and representation set forth in this Article VIII or in any Seller's
Estoppel Letter or for breach by Equitable of any of its Agreements set forth in
Article XIII unless and except to the extent that the damages due to Purchaser
by reason of all such breaches exceed $100,000, and in no event shall Equitable
be liable to Purchaser for consequential damages in respect of any such breach.
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(c) All of Equitable's representations and warranties set forth in
this Article VIII shall be deemed to have been remade on and as of the Closing
Date, subject, however, to the provisions of Section 8.05 and facts disclosed on
the updated Exhibits to this Agreement which are to be delivered by Equitable to
Purchaser at the Closing pursuant to Section 7.01 (which updated Exhibits, upon
their delivery by Equitable 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 Equitable (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, Equitable shall have the right to deliver a certificate to
Purchaser at or prior to the Closing which discloses such matter or event, and
if Equitable does so, Equitable 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, without
limitation, in Section 11.01) shall have been fulfilled. If Equitable shall
deliver such a certificate to Purchaser less than five (5) Business Days prior
to the Closing, Purchaser shall have the right, by giving notice to Equitable of
its electing so to do, to adjourn the Closing to a day which is the fifth (5th)
Business Day after its receipt of such certificate (or if such day is not a
Business Day, to the next Business Day). The right provided for in the preceding
sentence shall be exercisable by Purchaser notwithstanding the fact that
Purchaser may have theretofore utilized in full its right of adjournment under
Section 5.01.
(d) Notwithstanding anything to the contrary set forth in this
Article VIII or elsewhere in this Agreement, if prior to the Closing Purchaser
has or obtains knowledge that any of Equitable's warranties or representations
set forth in this Article VIII (except for those set forth in Sections 8.03(a),
8.03(b), 8.03(c), 8.03(k), 8.03(o) and 8.03(p)), or any of Equitable's
certifications, warranties or representations made in any Seller's Estoppel
Letter, is untrue in any respect, and Purchaser nevertheless proceeds with the
Closing, then the breach by Equitable of the warranties, representations or
certifications as to which Purchaser shall have such knowledge shall
automatically be deemed waived by Purchaser and Equitable shall have no
liability to Purchaser or its successors or assigns in
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respect thereof. For the purposes of this subsection 8.06(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, 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 Cravath, Swaine & Moore in this transaction to
Purchaser on or prior to the Closing Date or (iv) was set forth in a letter,
memorandum or other written communication from Equitable or Equitable's agents
to Jane A. Fortenberry. For purposes of this subsection 8.06(d), the term
"Lease" shall include only those Leases listed on Exhibit G and those Leases
that are approved by Purchaser in accordance with Article XIII.
ARTICLE IX
Representations and Warranties of Purchaser
SECTION 9.01. Purchaser's Warranties. Purchaser warrants and
represents to Equitable as follows:
(a) Purchaser is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) Purchaser has full power and authority to enter into this
Agreement and perform its obligations hereunder in accordance with the terms
hereof. The execution, delivery and performance of this Agreement by Purchaser
and the documents to be executed by Purchaser pursuant hereto have been duly and
validly authorized by all necessary action on the part of the managers and
members of Purchaser. This Agreement continues the legal, valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance with its
terms, subject as to enforceability to the effect of applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or similar laws
affecting the rights of creditors generally and to general principles of equity.
No bankruptcy, insolvency, reorganization, arrangement or moratorium proceeding,
or allegation of fraudulent conveyance, is now pending or, to Purchaser's
knowledge, threatened against Purchaser.
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(c) Execution by Purchaser of this Agreement and all documents
provided for herein to be executed by Purchaser, and performance by Purchaser of
the provisions hereof and thereof, will not violate or result in any breach of,
or constitute a default under, any law, regulation, order or judgment of any
governmental authority to which Purchaser is subject, or any agreement,
indenture, mortgage, deed of trust, bank loan, credit agreement or any other
instrument to which Purchaser is a party or by which Purchaser is bound, where
such breach or default might adversely affect Purchaser's ability to perform its
obligations hereunder or under such other documents. Purchaser is not in default
under any note, evidence of indebtedness, lease, contract, license, undertaking
or other agreement where the liability thereunder might adversely affect
Purchaser's ability to perform its obligations under this Agreement or such
other documents.
(d) Purchaser is not utilizing the assets of any employee benefit
plan (as defined in Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended) for or in connection with its acquisition of the Mall.
SECTION 9.02. Remaking of Warranties; Survival. All of Purchaser's
representations and warranties set forth in this Article IX shall be deemed to
have been remade on and as of the Closing Date. Such representations and
warranties, as remade, shall survive the Closing without limitation as to time.
ARTICLE X
Conditions to the Obligation
of Equitable To Close Title
The obligation of Equitable to close title under this Agreement is
expressly conditioned upon the fulfillment by and as of the Closing Date of each
of the conditions listed below, provided that Equitable, at its election, may
waive all or any of such conditions, which election shall be conclusively
evidenced by Equitable's proceeding with and completing the closing of the
transactions provided for herein:
(a) Purchaser shall have paid to Equitable the Purchase Price as
provided in Article III hereof and all other amounts due to Equitable hereunder.
(b) All representations and warranties of Purchaser set forth in
Article IX shall be true and correct
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in all material respects on and as of the Closing Date as if made on and as of
such date.
(c) Purchaser shall have executed and/or delivered or caused to be
delivered at the Closing all documents and executed counterparts of documents
and instruments required by this Agreement to be executed and/or delivered by
Purchaser and shall have taken all other actions and fulfilled all other
covenants and conditions required of Purchaser under this Agreement.
ARTICLE XI
Conditions to the Obligation of
Purchaser To Close Title
The obligation of Purchaser to close title under this Agreement is
conditioned upon the fulfillment by and as of the Closing Date of each of the
conditions listed below, provided that Purchaser, at its election, may waive all
or any of such conditions, which election shall be conclusively evidenced by
Purchaser's proceeding with and completing the closing of the transactions
provided for herein:
SECTION 11.01. Representations and Warranties. Subject to the
provisions of Section 8.05, all representations and warranties of Equitable set
forth in Section 8.03 shall be true and correct in all material respects on and
as of the Closing Date as if made on and as of such date (without reference to
any modifications thereof contained in any certificate delivered by Equitable to
Purchaser pursuant to Section 8.06(c)), subject, however, to changes resulting
from the operation of the Mall between the date hereof and the Closing Date in
accordance with the provisions of Article XIII.
SECTION 11.02. Closing Documents. Equitable shall have executed
and/or delivered or caused to be delivered at Closing all of the documents and
executed counterparts of documents and instruments required by this Agreement to
be executed and/or delivered by Equitable and shall have taken all other actions
and fulfilled all other covenants and conditions required of Equitable under
this Agreement.
SECTION 11.03. Condition of Title. Title to the Mall shall be in the
condition called for by this Agreement.
SECTION 11.04. Estoppels. The conditions set forth in Sections 17.01
and 17.03 shall be satisfied.
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SECTION 11.05. ALTA Title Policy. The Title Company shall be willing
to issue to Purchaser an ALTA extended coverage owner's policy of title
insurance (without regional exceptions) with respect to the Mall, together with
such customary endorsements and affirmative coverage (including, without
limitation, an ALTA 3.1-Zoning-completed structure endorsement) as Purchaser
shall reasonably request, dated as of the Closing Date and insuring Purchaser's
interest in the Mall in an amount equal to the Purchase Price, free of any
exceptions other than Permitted Exceptions.
SECTION 11.06 Unified Control of Master Phipps Tract. Purchaser,
Equitable and all other necessary parties shall have entered into a binding
agreement satisfactory in all respects to Seller and Purchaser in their sole
discretion sufficient (a) to ensure that upon sale of the Mall to Purchaser and
upon any other or future sale of any other portion of the Master Phipps Tract,
the Master Phipps Tract will continue to be under "unified control" for purposes
of applicable City of Atlanta Zoning Ordinances, (b) to establish procedures in
conformity with applicable City of Atlanta Ordinances for owners of the Master
Phipps Tract to request future site plan amendments to portions of the Master
Phipps Tract, which procedures shall protect and preserve the current zoning
status of the Master Phipps Tract and (c) to require all owners of portions of
the Master Phipps Tract to comply with all zoning conditions applicable to the
Master Phipps Tract, or any portion thereof.
SECTION 11.07. Cross-Easement Agreements. Binding agreements
satisfactory in all respects to Seller and Purchaser in their sole discretion
shall be in effect on the Closing Date sufficient to ensure that (i) all
easements and similar arrangements (including cost-sharing arrangements for
roadways and similar common areas) and/or restrictions determined by Purchaser
to be necessary or advisable in connection with its ownership of the Mall have
been created with all relevant parties and (ii) persons other than the Purchaser
have assumed responsibility for all costs and other obligations which (x) relate
to, or arise out of or are caused by the construction of improvements on land
other than the land described on Exhibit A and (y) are currently obligations
imposed upon the landlord under one or more of the Leases.
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ARTICLE XII
Risk of Loss
SECTION 12.01. Material Casualty or Condemnation. If prior to the
Closing the Mall shall suffer any damage by fire or other casualty, the cost of
which to repair exceeds $5,000,000, or if any proceeding shall be instituted for
the taking in condemnation or by eminent domain of any material portion of the
Mall, Purchaser shall have the right to terminate this Agreement by giving
written notice to Equitable within thirty (30) days after Purchaser is first
given written notice of such damage or taking. Equitable agrees to give
Purchaser prompt notice of the occurrence of any such damage or taking. If this
Agreement is so terminated by Purchaser, the Escrow Agent shall return the
Deposit to Purchaser (and Equitable and Purchaser shall execute a written
instruction to Escrow Agent to do so) and neither party shall have any further
obligations or liabilities hereunder, or otherwise with respect to the subject
matter hereof, except as otherwise expressly provided herein to the contrary.
SECTION 12.02. Election to Purchase After Casualty or Condemnation.
Notwithstanding the foregoing, if all or any portion of the Mall shall be
damaged by fire or other casualty or taken in whole or in part in condemnation
or by eminent domain, and if as a result of such damage or taking Purchaser
shall be entitled to be relieved of its obligations under this Agreement
pursuant to Section 12.01 above, Purchaser shall have the right, by giving
written notice to Equitable within thirty (30) days after receipt by Purchaser
from Equitable of written notice of such damage or taking, to elect nevertheless
to purchase the Mall. If Purchaser makes such election (which election shall be
deemed to have been made by Purchaser if it for any reason fails to give
Equitable notice of its election to terminate this Agreement within the thirty
(30)-day period provided for in Section 12.01) or if the damage or taking shall
not be of sufficient magnitude to entitle Purchaser to terminate this Agreement
pursuant to Section 12.01, this Agreement and the obligations of Equitable and
Purchaser hereunder shall remain in full force and effect except that (i)
Purchaser shall accept the Mall notwithstanding such damage or taking and shall
pay the full Purchase Price therefor and (ii) at the Closing (a) Equitable shall
assign to Purchaser all of its right, title and interest in and to all insurance
proceeds (including, without limitation, business interruption or rent insurance
proceeds) payable by reason of such damage or all awards payable by reason of
such taking, and, in the case of insurance proceeds, shall credit
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against the Purchase Price the amount of any deductible under Equitable's
insurance policies, (b) Equitable shall assign and pay over to Purchaser the
amount of such proceeds or award, if any, received by Equitable prior to the
date of the Closing, and (c) Equitable shall not settle or compromise any claim
for such proceeds or award without the prior consent of Purchaser, which consent
shall not be unreasonably withheld or delayed. Notwithstanding the foregoing,
Equitable shall be entitled to receive or retain (i) out of such casualty
insurance proceeds or award, any amounts expended by Equitable 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 Section 6.01), loss of rents by reason of the fire or other
casualty suffered by Equitable prior to the closing, which entitlement shall
survive the Closing.
ARTICLE XIII
Operation of the Mall Until Closing
SECTION 13.01. Standard of Operation. Equitable agrees to operate
and maintain the Mall, or cause the Mall to be operated and maintained, between
the date of this Agreement and the Closing Date in the ordinary course of
business and consistent with past procedures and practices heretofore followed
in connection with such operation and maintenance, except as otherwise
specifically provided in this Agreement; provided, however, that nothing
contained in this Section 13.01 or elsewhere in this Agreement shall require
Equitable to make or undertake any capital improvements, repairs or replacements
at the Mall between the date hereof and the Closing Date.
SECTION 13.02. Notice Requirements. Equitable will notify Purchaser
of any of the following matters which occur between the date of this Agreement
and the Closing Date: (i) notices of default received or given by Equitable with
respect to any Lease, any Operating Agreement or any material Other Agreement,
(ii) litigation commenced by Equitable, or litigation of which Equitable has
received notice commenced or threatened against Equitable, with respect to the
Mall (other than litigation covered by insurance as to which the insurer has
been notified on a timely basis and has not disclaimed liability or reserved its
rights), (iii) notices of condemnation proceedings commenced or threatened
against all or any portion of the Mall received by Equitable and (v) casualty
losses to the Improvements of the Mall.
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SECTION 13.03. Equitable's Rights and Covenants. (i) Between the
date of this Agreement and the Closing Date, Equitable shall maintain all
insurance currently maintained by Equitable on the Mall in full force and
effect, a true, correct and complete description of which is annexed hereto as
Exhibit O; (ii) between the date of Exhibit D and the Closing Date, Equitable
shall not without the prior written consent of Purchaser enter into any new
Other Agreements for the Mall except those which can be canceled by Purchaser on
thirty (30) days' notice without penalty; (iii) between the date of this
Agreement and the Closing Date, Equitable shall have the right, upon prior
written notice to Purchaser, to take such action as is appropriate to collect
Rents or damages in lieu of Rents under any Lease which shall be in default,
whether or not such default existed prior to the date of this Agreement,
provided that Equitable shall not seek to evict any Tenant without Purchaser's
prior written consent; and (iv) between the date of Exhibit G and the Closing
Date, Equitable shall not without the prior written consent of Purchaser (a)
amend, modify or terminate any Lease or enter into any new agreement with a
Tenant, (b) subject to Section 13.04, enter into any new Lease or (c) terminate
any Lease except by reason of the default of the Tenant thereunder, and then
only in accordance with clause (iii) of this Section 13.03.
SECTION 13.04. New Leases. If between the date hereof and the
Closing Date, Equitable desires to enter into any new Lease, Equitable shall
give Purchaser notice (the "New Lease Notice") which sets forth with respect to
such proposed new Lease (i) the name of the prospective tenant, (ii) the term of
the Lease, (iii) the Rents payable under the Lease, (iv) the location and size
of the premises, (v) the permitted uses under the Lease, (vi) the expenses
associated with the consummation of the Lease, including without limitation
leasing commissions, tenant improvements costs, tenant allowances and the like,
and (vii) any concessions or free Rent being granted, and which sets forth on
its face the substance of the last sentence of this Section 13.04. No such Lease
shall be entered into by Equitable without the prior written consent of
Purchaser, which consent shall not be unreasonably withheld. If Purchaser does
not respond to any New Lease Notice within ten (10) Business Days after its
receipt thereof, Purchaser shall be conclusively deemed to have approved the new
Lease which is the subject of such New Lease Notice and Equitable shall have the
right to enter into such new Lease.
SECTION 13.05. Survival. The provisions of this Article XIII shall
survive the Closing for a period of six (6) months; provided, however, that
Equitable's liability
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for any breach of any of the provisions of this Article XIII shall not expire as
to any breach or alleged breach thereof if notice of such breach or alleged
breach is given by Purchaser to Equitable prior to 6 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 (1) year after such notice
is given. The liability of Equitable under this Article XIII shall be subject to
the provisions of Section 8.06(b).
ARTICLE XIV
Title to Mall
SECTION 14.01. Title Defects. If, on the Closing Date, Equitable
shall be unable to convey to Purchaser title to the Mall subject to and in
accordance with the provisions of this Agreement, Equitable shall be entitled,
but shall not be obligated, to adjourn the Closing for one or more periods not
to exceed thirty (30) days in the aggregate (taking into account any other
adjournments taken by Equitable hereunder) for the purpose of causing title to
be placed in the condition called for by this Agreement. If on the Closing Date,
as the same may be adjourned as above provided, Equitable shall be unable to
convey title to the Mall in accordance with the terms of this Agreement,
Purchaser may terminate this Agreement by notice to Equitable delivered on or
prior to the Closing Date, as the same may have been extended, in which event
this Agreement shall be terminated and of no further effect and neither party
shall have any obligations of any nature to the other hereunder or by reason
hereof, except as to those obligations hereunder that are specifically stated to
survive such termination, and the Deposit and the Income shall be returned to
Purchaser by Escrow Agent (and Equitable shall join with Purchaser in executing
a written instruction to Escrow Agent to do so). Equitable shall be under no
obligation to take any steps or to institute or prosecute any action or
proceedings, or expend any sums of money, to remove from title to the Mall any
defect, encumbrance or objection to title; provided, however, that Equitable
shall be responsible for discharging or causing the Title Company affirmatively
to insure over any liens or encumbrances which do not constitute Permitted
Encumbrances, which can be discharged solely by the payment of a sum of money
and which arise on account of obligations undertaken or actions performed by, or
at the direction of, Equitable. Equitable may use any part of the cash portion
of the Purchase Price to discharge the same; provided, however, that Equitable
shall deliver to Purchaser or the Title
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Company at the Closing instruments in recordable form sufficient for the Title
Company to discharge such liens and encumbrances of record or shall obtain the
commitment of the Title Company affirmatively to insure over such liens or
encumbrances. Except for Equitable's failure to discharge or cause the Title
Company affirmatively to insure over such liens or encumbrances as aforesaid,
Equitable shall not be deemed in default of this Agreement, and Purchaser shall
not be entitled to damages of any kind, if Equitable shall be unable to convey
title to the Mall in the condition called for by this Agreement, nor shall
Purchaser in such circumstances be entitled to specific performance of this
Agreement; provided, however, that the foregoing provisions of this sentence
shall not apply in respect of any exception to title which is created as a
result of the intentional act of Equitable between the date hereof and the
Closing Date and which is not permitted under the terms of Article XIII. In no
event shall Equitable be obligated to discharge any mechanic's or similar lien
created by a Tenant in occupancy, but Equitable shall use commercially
reasonable efforts to cause such Tenant to do so.
SECTION 14.02. Waiver by Purchaser. Purchaser, at its election, may
at the Closing accept such title as Equitable can convey, without reduction of
the Purchase price or any credit or allowance on account thereof or any claim
against Equitable by reason thereof.
SECTION 14.03. Affirmative Insurance. Except as set forth in Section
14.01, Equitable shall not have the right, without the prior written consent of
Purchaser (which consent may be withheld in Purchaser's sole discretion), and
shall not have the obligation, to cause the Title Company affirmatively to
insure over any defects in title which do not constitute Permitted Exceptions
and which do not constitute defects which can be removed solely by the payment
of a sum of money.
SECTION 14.04. Deed Full Performance; Survival. The acceptance of
the Deed and other closing documents by Purchaser from Equitable shall be deemed
full performance on the part of Equitable of all of its obligations under this
Agreement, except as to any such obligation which is specifically stated in this
Agreement to survive the Closing or is expressly contained in documents
delivered at Closing. Except when otherwise expressly provided in this
Agreement, none of the provisions of this Agreement shall survive the Closing.
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ARTICLE XV
Brokers, etc.
SECTION 15.01. Equitable's Representation. Equitable represents and
warrants to Purchaser that Equitable dealt with no broker, finder or like agent
who might claim a commission or fee in connection with the transaction
contemplated in this Agreement or on account of introducing the parties, the
preparation or submission of brochures, the negotiation or execution of this
Agreement or the closing of the transaction contemplated herein other than ERE
Yarmouth ("Broker"). The fee of Broker shall be paid by Equitable pursuant to a
separate Agreement between Equitable and Broker. Equitable agrees to indemnify
and hold harmless Purchaser and its successors and assigns from and against any
and all claims, losses, liabilities and expenses, including without limitation
reasonable attorneys' fees, disbursements and charges, arising out of any claim
or demand for commissions or other compensation for bringing about this
transaction by any broker, finder or similar agent or party, including, without
limitation, Broker, who claims to have dealt with Equitable or any affiliate
thereof in connection with this transaction.
SECTION 15.02. Purchaser's Representation. Purchaser represents and
warrants to Equitable that neither Purchaser, nor any affiliate thereof, has
dealt with any broker, finder or like agent who might claim a commission or fee
in connection with the transaction contemplated in this Agreement or on account
of introducing the parties, the preparation or submission of brochures, the
negotiation or execution of this Agreement or the closing of the transaction
contemplated herein, other than Broker. Purchaser agrees to indemnify and hold
harmless Equitable and its successors and assigns from and against any and all
claims, losses, liabilities and expenses, including without limitation
reasonable attorneys' fees, disbursements and charges, arising out of any claim
or demand for commissions or other compensation for bringing about this
transaction by any broker, finder or similar agent or party other than Broker
who claims to have dealt with Purchaser or any affiliate thereof in connection
with this transaction.
SECTION 15.03. Survival. The provisions of this Article XV shall
survive the Closing or the termination of this Agreement.
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ARTICLE XVI
Default; Remedies
SECTION 16.01. Purchaser's Default. If at the Closing Date the
conditions to the obligation of Equitable to close title as set forth in Article
X have not been fulfilled solely as a result of the default of Purchaser in
performing any of its obligations hereunder, and the Closing does not occur as a
result thereof, then Equitable shall be entitled as its sole and exclusive
remedy to terminate this Agreement and receive the Deposit from the Escrow Agent
as liquidated damages for Purchaser's default (and in such circumstances
Purchaser shall join with Equitable in a written instruction to Escrow Agent to
pay the Deposit to Equitable) and Equitable expressly waives any and all other
rights and remedies which Equitable may have at law or in equity against
Purchaser. Purchaser and Equitable agree that such liquidated damages are not
intended as a penalty, and are their best estimate of the actual damages that
would be incurred by Seller based in part upon the following damages which
Equitable will suffer on account of a default by Purchaser and the failure of
the Closing to occur, which damages Purchaser and Equitable agree are incapable
of an exact determination of amount: the removal of the Mall from the real
estate market from September 17, 1997 and the loss of the possibility of
obtaining a new purchaser during such time at a higher amount; the possibility
of being unable to find a new purchaser for the amount of the Purchase Price
after Purchaser's default; various restrictions related to the management and
maintenance of the Mall during the period of this Agreement; the inconvenience
and expense of remarketing the Mall for sale; and the expense of negotiating and
documenting a new transaction.
SECTION 16.02. Equitable's Default. If at the Closing Date the
conditions to the obligation of Purchaser to close title as set forth in Article
XI have not been fulfilled solely as a result of the default of Equitable
hereunder, and the Closing shall not occur as a result thereof, 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 have the Deposit returned
to it by the Escrow Agent (and in such circumstances Equitable shall join with
Purchaser in a written instruction to Escrow Agent to pay the Deposit to
Purchaser), (ii) seek specific performance of Equitable's obligations under 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
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consequential damages) but only if Purchaser has theretofore brought an action
seeking specific performance of Equitable'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 Equitable for
damages (including consequential damages) for any default by Equitable
hereunder, but if the Closing occurs, subject to the provisions of Sections 8.05
and 8.06 such waiver shall not apply to damages to which Purchaser may be
entitled hereunder by reason of any breach by Equitable of any of its warranties
or representations hereunder which survive the Closing.
SECTION 16.03. Survival. The provisions of this Article XVI shall
survive the termination of this Agreement.
ARTICLE XVII
Estoppels
SECTION 17.01. Required Estoppels. At or before the Closing,
Equitable shall deliver to Purchaser estoppel letters (a) from all Anchors and
all other Tenants leasing 10,000 or more square feet of gross leasable area and
(b) from 75% (by base rent and gross leasable area) of all Tenants at the Mall
which are not Anchors or Tenants described in clause (a) above, such estoppel
letters to be in substantially the form annexed hereto as Exhibit P (in the case
of Anchors) or Exhibit Q (in the case of all other Tenants); provided, however,
that if any Lease provides for the form or content of an estoppel letter,
Purchaser shall accept an estoppel letter as called for therein if any Tenant
refuses to execute one in the applicable form annexed hereto as an exhibit after
being requested to do so by Equitable. Each estoppel letter provided for above
shall be dated no earlier than 45 days prior to the Closing Date. If Equitable
shall deliver to Purchaser 50 or more estoppel letters within five (5) Business
Days prior to the Closing, Purchaser shall have the right, by giving notice to
Equitable of its election to do so, to adjourn the Closing to a day which is the
fifth (5th) Business Day after its receipt of the last such estoppel letter (or
if such day is not a Business Day, to the next Business Day). The right provided
for in the preceding sentence shall be exercisable by Purchaser notwithstanding
the fact that Purchaser may have theretofore fully utilized its rights of
adjournment under Section 5.01. For purposes of this Section 17.01, the term
"Tenant" shall not include Tenants under Leases that are licenses and concession
agreements which have original
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terms, as they may be extended by renewal rights, of less than six (6) months.
SECTION 17.02. Seller's Estoppels. If Equitable shall be unable to
obtain one or more of the estoppel letters which Equitable is obligated to
deliver to Purchaser pursuant to Section 17.01, if Purchaser so agrees in its
sole discretion Equitable may deliver to Purchaser, and Purchaser shall accept
in lieu thereof, an estoppel letter signed by Equitable in the applicable form
annexed hereto as Exhibit R ("Seller's Estoppel Letter") with respect to each of
the parties from which it has not obtained an estoppel letter. Statements made
by Equitable in a Seller's Estoppel Letter shall constitute warranties and
representations by Equitable which shall survive the Closing for the period, and
shall otherwise be subject to the limitations, set forth in Section 8.06. A
Seller's Estoppel Letter shall be of no further force or effect as of the date
on which there is delivered to Purchaser an estoppel letter from the party in
respect of which such Seller's Estoppel Letter was given, but only to the extent
that the estoppel letter executed by such party confirms the statements made in
such Seller's Estoppel Letter. Except as otherwise provided in the following
sentence, nothing contained in this Section 17.02 shall be construed as
affording Equitable the right to substitute a Seller's Estoppel Letter for any
estoppel letter required under this Article unless Purchaser agrees, in its sole
discretion, to accept the same in lieu of the required estoppel letter.
Notwithstanding anything to the contrary set forth in this Section 17.02, if
Equitable shall obtain estoppel letters from at least 70%, but less than 75%, of
the Tenants at the Mall of the nature specified in Section 17.01(b), Seller may
deliver to Purchaser one or more Seller's Estoppel Letters in respect of any
such Tenant or Tenants at the Mall which has or have not executed and delivered
estoppel letter(s) and, for the purposes of satisfying the 75% requirement set
forth in Section 17.01(b), each such Seller's Estoppel Letter shall be deemed to
be an estoppel letter which has been executed and delivered by such a Tenant at
the Mall.
SECTION 17.03. Variance between Estoppels and Forms Annexed as
Exhibits. Equitable shall not be in default under this Agreement if one or more
estoppel letters signed by Anchors, other Tenants or other third parties set
forth allegations or facts at variance with statements in the forms annexed
hereto as exhibits, but it shall be a condition to Purchaser's obligation to
close the transactions provided for herein that such estoppel letters, taken as
a whole, do not reveal facts which, in the commercially
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reasonable judgment of Purchaser, have a material adverse effect on the value of
the Mall.
SECTION 17.04. All Estoppels To Be Delivered. Equitable agrees that
notwithstanding the fact that estoppel letters are required from only 75% of the
Tenants specified in clause (b) of Section 17.01, Equitable will request all
Tenants (other than Anchors) to execute estoppel letters in the form annexed
hereto as Exhibit Q. Equitable further agrees that all Estoppels received by it
will be delivered to Purchaser promptly after receipt, whether or not such
estoppels are required in order to satisfy any of the requirements of this
Article XVII and whether or not such estoppels are received before or after the
Closing. The provisions of the preceding sentence shall survive the Closing.
ARTICLE XVIII
Notices
Except as otherwise provided in this Agreement, all notices,
demands, requests, consents, approvals or other communications which are
required or permitted to be given under this Agreement or which either party
desires to give with respect to this Agreement shall be in writing and shall be
delivered by hand or sent by telecopy (with the original sent by first-class
mail, postage prepaid), or sent postage prepaid, by registered or certified
mail, return receipt requested, or by reputable overnight courier service
addressed to the party to be notified as follows (or to such other address as
such party shall have specified at least ten (10) days prior thereto by like
notice) and shall be deemed given when so delivered by hand or telecopied, and
if mailed, three (3) Business Days after mailing (one (1) Business Day in case
of overnight courier service), as follows:
if to Equitable, to:
ERE Yarmouth
3424 Peachtree Road, N.E.
8th Floor
Atlanta, Georgia 30326
Attn: Gene Conway
Telecopier: (404) 848-8910
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with copies at the same time to:
ERE Yarmouth
3424 Peachtree Road, N.E.
8th Floor
Atlanta, Georgia 30326
Attn: Michael McNamara
Telecopier: (404) 848-8905
and
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attn: Walter F. Leinhardt, Esq.
Telecopier: (212) 373-2771
if to Purchaser, to:
c/o Corporate Property Investors
305 East 47th Street
New York, NY 10017
Attn: J. Michael Maloney
Telecopier: (212) 755-9296
with copies at the same time to:
c/o Corporate Property Investors
305 East 47th Street
New York, NY 10017
Attn: Harold E. Rolfe, Esq.
Telecopier: (212) 755-9296
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019-7475
Attn: Kevin J. Grehan, Esq.
Telecopier: (212) 474-3700
ARTICLE XIX
Further Assurances
Each of Equitable and Purchaser agrees, at any time and from time to time
after the Closing, to execute, acknowledge, where appropriate, and deliver such
further instruments and documents and to take such other action as the other
party may reasonably request in order to carry out the intents and purposes of
this Agreement, provided that
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such request is made by notice given within two (2) years after the Closing
Date. If required by the other party, the party making the request will bear the
reasonable cost involved. Neither party shall be required to execute any
instrument or document pursuant to this Article XIX which would increase the
liability or obligations of such party over that provided for in this Agreement
and the instruments and documents executed by such party pursuant hereto in any
material respect. The provisions of this Article XIX shall survive the Closing.
ARTICLE XX
Captions
The article and section titles or captions in this Agreement and the Table
of Contents and the Schedule of Exhibits prefixed hereto are for convenience
only and shall not be deemed to be part of this Agreement.
ARTICLE XXI
Governing Law; Construction
This Agreement shall be construed, interpreted and enforced in accordance
with the laws of the State of New York applicable to contracts negotiated,
executed and to be performed wholly within such State; provided, however, that
matters relating to title to the Mall or instruments conveying or affecting such
title shall be governed by the laws of the State of Georgia. Each party hereto
acknowledges that it was represented by counsel in connection with this
Agreement and the transactions contemplated herein, that it and its counsel
reviewed and participated in the preparation and negotiation of this Agreement
and the documents and instruments to be delivered hereunder, and that any rule
of construction to the effect that ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
the documents and instruments to be delivered hereunder.
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ARTICLE XXII
Entire Agreement;
No Third Party Beneficiary, etc.
This Agreement, including all Exhibits, contains the entire Agreement
between the parties with respect to the subject matter hereof and supersedes
all prior understandings, if any, with respect thereto. The parties have made
no representations with respect to the subject matter of this Agreement and
have given no warranties with respect to the subject matter hereof except as
expressly provided herein and/or expressly provided in the documents delivered
at Closing. This Agreement may not be modified, changed, supplemented or
terminated, nor may any obligations hereunder be waived, except by written
instrument signed by the party to be charged or by its agent duly authorized in
writing or as otherwise expressly permitted herein. The parties 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. The
provisions of this Article XXII shall survive the Closing or termination of
this Agreement.
ARTICLE XXIII
Waivers; Extensions
No waiver of any breach of any Agreement or provision herein contained
shall be deemed a waiver of any preceding or succeeding breach thereof or of
any other Agreement or provision herein contained. No extension of time for
performance of any obligations or acts shall be deemed an extension of the time
for performance of any other obligations or acts. Whenever in this Agreement it
is provided that a document, such as an estoppel letter or good standing
certificate, must be dated within a specified number of days prior to the
Closing Date, the reference to be December 12, 1997 and not any date to which
such Closing Date may be adjourned pursuant to the provisions of this Agreement
or by Agreement of the parties hereto. The provisions of this Article XXIII
shall survive the Closing or termination of this Agreement.
ARTICLE XXIV
Pronouns
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All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine or neuter, singular or plural, as the identity of the
parties may require.
ARTICLE XXV
Transaction Expenses; Other Expenses;
Confidentiality; Indemnity
SECTION 25.01. Transaction Expenses. Each of Equitable and Purchaser shall
pay 50% of the cost of updating the existing survey of the Mall described in
Section 4.01(d), the cost of title insurance ordered by the Purchaser and all
endorsements, extended coverage, affirmative insurance and all reinsurance or
coinsurance costs in connection therewith (including reasonable attorneys' fees
in connection with any legal opinions necessary to obtain the zoning endorsement
contemplated by Section 11.05) and all recording fees and charges, transfer
taxes payable in connection with the Deeds and transfer of title to the Mall and
all sales or similar taxes, if any, on the transfer of the Personal Property and
the Intangible Personal Property; provided, however, that Equitable shall pay
100% of any and all recording fees and charges for documents required to remove
exceptions to title which do not constitute Permitted Exceptions and/or the cost
of causing the Title Company to insure over any such exceptions that Purchaser
has agreed in writing may be insured over or that are insured over in accordance
with Section 14.01. Equitable shall pay 100% of the fees of the Broker.
SECTION 25.02. Other Expenses. Subject to Section 25.01, each party shall
pay its own expenses in connection with the transactions contemplated in this
Agreement, including the fees, disbursements and charges of its own counsel,
accountants, consultants, experts and other advisors in connection with the
negotiation and preparation of this Agreement and the Closing.
SECTION 25.03. Confidentiality. Neither Seller nor Purchaser (nor any
officer, director, trustee, employee, agent, partner, member or affiliate
thereof) shall disclose the existence or contents of this Agreement to any third
party without the consent of both of the parties hereto. Prior to the Closing,
all information respecting the Mall or Seller's operations or business
(including documents, records, analyses, or other data or materials) either
furnished to Purchaser or disclosed by Purchaser's due diligence (including all
materials prepared by Purchaser
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based on such information) will be treated confidentially by Purchaser. If the
transaction contemplated herein is terminated or does not close, Purchaser will
promptly upon Seller's request either deliver all such information to Seller or
destroy all such information (without retaining copies thereof) and shall
certify in writing to Equitable that it has done so. Nothing contained in this
Section shall limit the ability of either party (a) to disclose such
information as may be required by law or (b) to disclose information to a
party's (or in the case of Purchaser, Corporate Property Investors') partners,
officers, shareholders, pension plan participants, trustees, directors,
employees, lenders, rating agencies, accountants and lawyers and to other
parties who reasonably need to be informed of such matters by a party hereto in
order to evaluate the acquisition contemplated herein (but only to the extent
necessary in connection therewith). All persons or entities to whom any
information which is confidential hereunder is disclosed will first be informed
of the confidential nature thereof and shall be instructed to keep such
information confidential. No advertisement or other publicity concerning this
transaction (including, without limitation, any tombstones or similar
advertisements) will be made or disseminated by any party or any broker, and no
evidence of or information with respect to the Purchase Price shall be (i)
disclosed to third parties except as set forth above or (ii) placed of record
in a deed or other instrument unless required by law, in the case of any period
before the Closing hereunder without both parties' consent, or in the case of
any period after the Closing hereunder, without Purchaser's consent (which
consent may be withheld in any such party's sole discretion). Notwithstanding
the foregoing, after the Closing, Seller may place tombstone or similar
advertisements concerning the transaction contemplated by this Agreement,
provided that such tombstone or similar advertisement is prepared in reasonable
consultation with Purchaser.
SECTION 25.04. Indemnity. (a) Seller hereby indemnifies Purchaser (and its
affiliates) for, 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 made by any person or entity for
personal injury, death or property damage that arise from actions or omissions
of Seller (or any of Seller's agents, employees or representatives) relating to
the Mall and occurring prior to the Closing Date.
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(b) Purchaser hereby indemnifies Seller (and its affiliates) for, 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 made by any person or entity for personal injury, death or
property damage that arise from actions or omissions of Purchaser (or any of
Purchaser's agents, employees or representatives) relating to the Mall and
occurring on or after the Closing Date.
SECTION 25.05. Survival. The provisions of this Article XXV shall survive
the Closing or termination of this Agreement.
ARTICLE XXVI
Assignment
Purchaser shall not, without the prior written consent of Equitable,
assign this Agreement or its rights hereunder, in whole or in part, to any
other person or entity other than to one or more entities controlled by
Corporate Property Investors, a Massachusetts business trust.
ARTICLE XXVII
Counterparts
This Agreement may be executed in counterparts, each of which (or any
combination of which, signed by all of the parties) shall be deemed an
original, but all of which, taken together, shall constitute one and the same
instrument.
ARTICLE XXVIII
No Recording
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, Equitable, 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 and, in the event of such termination,
Equitable shall be entitled to receive the Deposit from the Escrow Agent as
liquidated damages for Purchaser's breach. The provisions
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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
Equitable 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.
ARTICLE XXIX
Prevailing Party's Attorneys' Fees
In connection with any litigation, including appellate proceedings,
initiated by a party hereto against the other party hereto and arising out of
this Agreement or any instrument or document executed pursuant hereto, the
party adjudicated to be the substantially prevailing party shall be entitled to
recover reasonable attorneys' fees and disbursements from the other party. The
provisions of this Article shall survive the Closing or the termination of this
Agreement.
ARTICLE XXX
Waiver of Trail by Jury
Equitable 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. Equitable 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
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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.
SELLER:
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES,
by /s/ Paul A. Mucci
-------------------------
Name: Paul A. Mucci
--------------------
Title: Investment Officer
-------------------
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PURCHASER:
CPI-PHIPPS LIMITED LIABILITY
COMPANY,
by Corporate Property
Investors, its sole member
by /s/ J. M. Maloney
---------------------------------
Name: J. Michael Maloney
Title: Senior Vice President
The undersigned hereby
executes this Agreement
solely to evidence its
Agreement to hold the
Deposit and the Income
in accordance with
Section 3.02.
FIRST AMERICAN TITLE
INSURANCE COMPANY
by /s/ Mindy B. Haas
---------------------------
Name: Mindy B. Haas
Title: Vice President