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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
the Securities Act of 1934
Date of Report (Date of Earliest Event Reported)
September 18, 1998
GENERAL GROWTH PROPERTIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 1-11656 42-1283895
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(State or other (Commission File (I.R.S. Employer
jurisdiction of Number) Identification Number)
incorporation)
110 N. Wacker Drive, Chicago, Illinois 60606
(Address of principal executive offices) (Zip Code)
(312) 960-5000
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(Registrant's telephone number, including area code)
N/A
(Former name or former address, if changed since last report.)
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Item 2. Acquisition or Disposition of Assets.
Coastland Mall
On September 18, 1998, GGP Limited Partnership, a Delaware limited partnership
(the "Operating Partnership" ), through its wholly-owned affiliate (Coastland
Center, L.P., a Delaware limited partnership), acquired in an arms-length
transaction Coastland Mall in Naples, Florida from Coastland Center Joint
Venture, an unrelated third-party. The general partner of the Operating
Partnership is General Growth Properties, Inc., a Delaware corporation (the
"Company" ), which holds approximately a 61.14% general partnership interest
in the Operating Partnership and 100% of the preferred units of the Operating
Partnership.
The aggregate consideration paid by the Operating Partnership for the
acquisition of Coastland Mall was approximately $114.5 million in cash
(subject to prorations and to certain adjustments and payments to be made by
the Operating Partnership) which was borrowed under the Company's line of
credit with Union Bank Of Switzerland.
Although the Coastland transaction would not constitute the acquisition of a
significant amount of assets for purposes of Item 2 of Form 8-K and although
the Coastland transaction and the Company's acquisition of Southwest Plaza on
April 3, 1998; the Altamonte Mall on July 21, 1998; the Pierre Bossier Mall on
September 21, 1998 and the Spring Hill Mall on September 15, 1998 were not
related transactions, the cumulative effect of the Coastland transaction and
such other recent acquisitions could be deemed to constitute the acquisition of
a significant amount of assets. Accordingly, this transaction is being
reported pursuant to Item 2 of Form 8-K.
Coastland Mall opened in 1977 and was extensively remodeled in 1985 and 1986. It
is a one-level mall containing approximately 925,000 square feet of retail
gross leasable area. The center is anchored by Burdine's, Dillard's, Sears, and
JC Penney. The mall includes approximately 335,000 square feet of mall shop
space, which is currently approximately 92% occupied.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a),(b) The requisite financial information with respect to the Coastland
Mall acquisition will be filed under cover of Form 8-K/A as soon as
practicable, and in any event not later than 60 days after the date by which
this Form 8-K is required to be filed.
(c) Exhibits
See Exhibit Index attached hereto and incorporated herein.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
GENERAL GROWTH PROPERTIES, INC.
By: /s/ Bernard Freibaum
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Bernard Freibaum
Executive Vice President and
Chief Financial Officer
Date: October 5, 1998
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EXHIBIT INDEX
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Exhibit Name Page
Number Number
99.2. Purchase and Sale Agreement dated as of the
18th day of September, 1998 by and between
Coastland Center Joint Venture (seller) and
Coastland Center, L.P. (purchaser).
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EXHIBIT - 99.2
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made as of the 18th day of September, 1998 by and between
COASTLAND CENTER JOINT VENTURE, an Illinois general partnership (hereinafter
called "Seller"), and COASTLAND CENTER, L.P., a Delaware limited partnership
("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller owns the shopping center known as Coastland Center in
Naples, Florida (excluding the land and improvements owned by Burdines, Dillards
and Sears), containing approximately 39 acres of land and 460,000 square feet of
improvements; and
WHEREAS, Seller desires to sell its interest in such property and Purchaser
desires to purchase such interest from Seller on the terms and conditions set
forth below;
NOW, THEREFORE, in consideration of the premises and the respective
undertakings of the parties hereinafter set forth, it is hereby agreed:
SECTION 1. DEFINITIONS. Wherever used in this Agreement, the words and
phrases set forth below shall have the meanings set forth below or in an Exhibit
to this Agreement to which reference is made, unless the context clearly
requires otherwise.
A. "Books and Records" shall mean all records, books of account and papers
of Seller relating to the construction, ownership and operations of the Project,
including without limitation, architect's drawings, blue prints and as-built
plans, maintenance logs, copies of warranties and guaranties, licenses and
permits, instruction books, financial statements, paper and electronic media
copies of data and other information relating to the Project available from
personal computers, structural, mechanical, geotechnical or other engineering
studies, soil test reports, environmental reports, underground storage tank
reports, ADA surveys or reports, OSHA asbestos surveys, mall documents and
compilations, originals and/or copies of Tenant Leases, the REA's and the
Service Contracts and correspondence related thereto.
B. "Closing" means the closing at which Seller conveys title to the Project
to Purchaser and Purchaser pays Seller the purchase price described in Section 2
herein below.
C. "Closing Date" means September 18, 1998, or such other date as shall
otherwise be agreed upon by the parties for the Closing.
D. "Hazardous Materials" shall mean any substance, material, waste, gas or
particulate matter which (i) is now, or
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at any future time may be, regulated by the United States Government, the State
of Florida, any other state with jurisdiction, or any local governmental
authority, or (ii) the exposure to, or manufacture, possession, presence, use
generation, storage, transportation, treatment, release, disposal, abatement,
cleanup, removal, remediation or handling of is prohibited, controlled or
regulated by any environmental law, or (iii) requires investigation or
remediation under any environmental law or common law, or (iv) is toxic,
explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise hazardous.
E. "Improvements" means all buildings, structures, fixtures and other
improvements now or hereafter located or erected on the Land (other than any
trade fixtures owned by tenants).
F. "Land" means the real property described on Exhibit A, including all
adjacent roadways, rights-of-way and alleys to the extent Seller has an interest
therein, all oil, gas and other mineral rights and all easements and other
rights appurtenant to such real property.
G. "Losses" shall mean with respect to any obligation to indemnify Seller,
the Indemnified Seller Persons, Purchaser or the Indemnified Purchaser Persons,
any and all claims, actions, suits, demands, losses, damages, liabilities,
obligations, judgments, settlements, awards, penalties, costs or expenses,
including, without limitation, reasonable attorneys' fees and expenses.
H. "Permitted Exceptions" means non-delinquent real property taxes on the
Project and any other title exceptions set forth on the Title Commitment
(defined below) which are not objected to by Purchaser within the time period
set forth in Paragraph 6(1) below.
I. "Personal Property" means all tangible and intangible personal
property now or hereafter owned by the Seller and located at and used in
connection with the operation of the Project, including, without limitation,
(i) all building and construction materials, equipment, appliances and
machinery owned by Seller and used in connection with the operation of the
Project, (ii) all permits, licenses, certificates and approvals issued in
connection with the Project, (iii) Seller's rights to use the name of the
Project, (iv) inventories, consumables, desktop computers and peripheral
equipment (excluding laptop computers), and data contained in hard drives and
diskettes (excluding budgets, appraisals, market studies and other confidential
information), (v) logos, trademarks, tradenames and copyrights (excluding the
name "LaSalle" or "LaSalle Partners"), and (vi) copies of the Books and
Records.
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J. "Project" means the Land, the Improvements and the Personal Property,
the rights and interests of Seller under the Leases, the rights and interests of
Seller under the REA's and the rights and interests of Seller under the Service
Contracts.
K. "Project Agreement(s)" means, collectively, the Tenant Leases, the
Service Contracts and the Permitted Exceptions.
L. "REA's" shall mean the reciprocal easement agreements affecting the
Project as set forth in Exhibit B.
M. "Survey" shall mean an Urban ALTA/ACSM Land Title Survey of the Project
by a surveyor licensed or registered in the State where the Land is located,
made in compliance with and meeting the accuracy standards under the "Minimum
Standard Detail Requirements for ALTA/ACSM Land Surveys" jointly established by
the American Land Title Association and American Congress on Surveying and
Mapping then in effect and containing Table A Optional Survey Responsibilities
and Specifications 1, 2, 3, 4, 6, 7(a), 7(b)(1), 7(c), 8, 9, 10, 11 and 13;
shall show the boundaries of each of the Land parcels; shall disclose whether or
not the Land comprises a single parcel of land with no strips, gores or gaps
within its boundaries; shall disclose any encroachments of any Improvements
located primarily on the Land onto adjoining premises and public ways (and
whether or not a valid easement for the benefit of the Project exists and is in
place with respect to each such encroachment) or onto or over setback or
building lines located on the Land or of improvements located primarily on
adjoining premises onto any portion of the Land (and whether or not a valid
easement for the benefit of the adjoining premises shall exist and be in place
with respect to each such encroachment); shall locate all easements created by
recorded instruments (to the extent plottable) or visible on the Land and shall
disclose any encroachment by any of the Improvements, or any other structures
located on the Land, in violation of any such easements; shall contain a legal
description of the Land; shall show the location of any adjacent public streets,
disclosing access, if any, to the Land therefrom; shall show building line(s)
and side yard line(s), if any; shall show the configuration and number of
parking spaces on the Land; shall show the area of the Land; shall state whether
the Land is located in an area designated by HUD as having special flood risks;
and shall contain a certificate of the surveyor attesting to the accuracy of the
Survey and its conformity to the requirements of the aforesaid Minimum Standard
Detail Requirements, which certificate shall be directed to Seller, Purchaser
and the Title Company, and to such other persons having an interest in the
Project which Purchaser may designate.
N. "Title Commitment" shall mean a commitment for title insurance issued by
the Title Company to Purchaser providing for the issuance at the Closing to
Purchaser of the Title Policy, which commitment must disclose Seller as the
owner of fee simple interest in the Project and shall disclose and shall have
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attached to it (or there shall be delivered by Seller to Purchaser) copies of
all documents underlying all exceptions to title and all encumbrances on and
other matters of record affecting the Project, and which commitment shall
include forms of all endorsements to be a part of the Title Policy.
O. "Title Policy" shall mean an ALTA Form B-1970 Owner's Policy of Title
Insurance issued by Title Company, dated the date and time of Closing and with
policy coverage in the amount of the Purchase Price, insuring Purchaser as owner
of good, marketable and indefeasible fee title to the Project, subject only to
the Permitted Exceptions, and affirmatively insuring as a part of Schedule A to
such Title Policy Purchaser's rights under the REA's or other appurtenant
easements that benefit the Real Property and containing the following
endorsements: an extended coverage endorsement over the general exceptions
contained in the policy, a contiguity endorsement and a survey endorsement.
P. "Title Company" means Tamiami Title, Inc., as agent for Chicago Title
Insurance Company.
SECTION 2. EARNEST MONEY; AGREEMENT TO SELL AND PURCHASE.
A. Earnest Money. Within two (2) business days after the date hereof,
Purchaser shall deposit $1,145,000 with the Title Company (which, together with
any interest earned thereon, is herein referred to as the "Earnest Money"); and,
if Purchaser fails to deposit the Earnest Money by such date, this Agreement
shall be deemed null and void. The Earnest Money shall be held by the Title
Company in accordance with the terms hereof and invested in an account
reasonably approved by Purchaser and Seller (and each reference to the Earnest
Money shall be deemed to include all interest earned thereon). If this
Agreement is terminated due to Purchaser's default hereunder, the Earnest Money
shall be paid to Seller as liquidated damages and as Seller's sole and exclusive
remedy. If the Closing occurs hereunder, the Earnest Money shall be paid to
Seller and credited against the Purchase Price. If the Closing does not occur
hereunder for any reason other than Purchaser's default hereunder, the Earnest
Money shall be refunded to Purchaser.
B. Purchase and Sale. On the Closing Date Seller shall convey the Project
to Purchaser on the terms and conditions set forth herein. On the Closing Date
the Purchaser shall accept title to the Project from Seller on the terms and
conditions set forth herein and shall pay to the Seller the purchase price
("Purchase Price") of ONE HUNDRED FOURTEEN MILLION FIVE HUNDRED THOUSAND AND
00/100 DOLLARS ($114,500,000), subject to prorations as set forth below, by wire
transfer of immediately available funds.
SECTION 3. REPRESENTATIONS AND WARRANTIES BY SELLER. Seller hereby
represents and warrants to, and covenants and
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agrees with, Purchaser as of the date hereof and as of the Closing as follows
(all of which representations and warranties shall be deemed automatically
remade as of the Closing):
A. Due Organization. Seller is a general partnership duly organized and
validly existing under the laws of the State of Illinois; Seller has full power
and authority, and is duly authorized, to execute, enter into, deliver and
perform this Agreement and its obligations hereunder.
B. Power. This Agreement and all other agreements, instruments and
documents required to be executed or delivered by Seller pursuant hereto have
been or (if and when executed) will be duly executed and delivered by Seller,
and are or will be legal, valid and binding obligations of Seller. No consents
and permissions are required to be obtained by Seller for the execution and
performance of this Agreement and the other documents to be executed by Seller
hereunder. The consummation of the transactions contemplated herein and the
fulfillment of the terms hereof will not result in a breach of any of the terms
or provisions of, or constitute a default under, any agreement or document to
which the Seller is a party or by which it is bound, or any order, rule or
regulation of any court or of any federal or state regulatory body or any
administrative agency or any other governmental body having jurisdiction over
the Seller or the Project.
C. No Proceedings. Except as set forth in Exhibit C, there is not now
pending or, to Seller's actual knowledge, threatened, any action, suit or
proceeding before any court or governmental agency or body against the Seller or
the Project. Without limiting the generality of the foregoing, Seller has not
received any written notices from any governmental entities of violations or
alleged violations of any laws, rules, regulations or codes, including building
codes, with respect to the Project which have not been corrected to the
satisfaction of the governmental agency issuing such notices.
D. Eminent Domain. There are no pending, or to Seller's actual knowledge,
threatened condemnation, eminent domain or similar proceedings relating to the
Project or any portion thereof or any interest or estate therein.
E. Zoning; Taxes. There are no pending or, to Seller's actual knowledge,
threatened zoning changes or variances with respect to the Project; nor has
Seller initiated any request or application for a zoning change or variance with
respect to the Project. There are no pending or, to Seller's actual knowledge,
threatened reassessments or special tax assessments against the Project except
for normal reassessments applicable generally to properties in the area of the
Project. No application or proceeding is pending with respect to a reduction or
increase of real estate taxes for the Project nor is any challenge pending with
respect to the assessed valuation of the Project.
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F. Service Contracts. Attached hereto as Exhibit D is a list of all
contracts or agreements to which Seller or Seller's property manager is a party
for the providing of services to or management of the Project (which contracts
and agreements, together with the contracts and agreements entered into with
respect to the Project after the date hereof with the consent of Purchaser
pursuant to Section 6 below, are herein referred to collectively as the "Service
Contracts"). To Seller's actual knowledge, all of the Service Contracts are in
full force and effect and free from material default, and Seller has received no
written notice of material default under the Service Contracts from the other
parties thereto.
G. Tenant Leases. Attached hereto as Exhibit E is a list of all
outstanding leases, licenses, concession agreements or other agreements pursuant
to which any person or entity occupies, or has the right to occupy, space in the
Project, setting forth the date thereof and of each modification, the names of
the parties thereto and the name of any assignee (which leases, licenses,
concession agreements, other agreements and other documents, together with the
lease documents entered into with respect to the Project after the date hereof
with the consent of Purchaser pursuant to Section 6 below, are herein referred
to collectively as the "Tenant Leases"). There are no leases or other rights of
occupancy or use of any portion of the Project other than the Tenant Leases. To
Seller's actual knowledge, each of the Tenant Leases is valid and subsisting and
in full force and effect. Exhibit E sets forth the commencement date of each
Tenant Lease. Except as shown on such exhibit, (a) to Seller's actual
knowledge, there are no material defaults, nor any event with the giving of
notice or the passage of time would become a material default, under any of the
Tenant Leases by either Seller or any tenant thereunder and the Tenant Leases
are in full force and effect, (b) there are no security deposits nor any rights
to refunds of rents previously paid under the Tenant Leases except for year-end
reconciliations of operating expenses and real estate taxes for the year in
which the Closing occurs, (c) there are no brokerage commissions or fees due now
or payable in the future in connection with the Tenant Leases, (d) as of the
Closing Date, no rents due under, or any other interest in, any of the Tenant
Leases will be assigned to any party other than Purchaser, or otherwise pledged
or encumbered in any way by Seller, (e) to Seller's actual knowledge, no tenant
is currently entitled to any reduction in, refund of, or counterclaim or offset
against, or is otherwise disputing, any rents or other charges paid, payable or
to become payable by such tenant, (f) to Seller's actual knowledge, no tenant
has exercised any right to cancel its Tenant Lease or to be relieved of its
operating covenants thereunder, (g) to Seller's actual knowledge, all of the
improvements to be constructed by the landlord under each of the Tenant Leases,
or as required under any collateral agreement, plans or specifications related
to the Tenant Leases, have been
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fully completed and paid for except for Morrison's and Ruby Tuesday.
H. Labor Contracts. Seller has no employees working at the Project. All
persons working on behalf of Seller at the Project are employees of Seller's
managing agent for the Project, and Purchaser will be under no obligation to use
or hire such employees for the Project after Closing.
I. The REA's. The REA's constitute the only reciprocal easement agreements
or operating agreements encumbering the Project. A true and complete copy of
the REA's have heretofore been furnished to Purchaser, together with each
written modification thereof and supplement thereto. The REA's constitute the
entire agreement between Seller and the other parties thereto (the "REA
Parties") with respect to the Project, and Seller has not made any oral promises
or agreements amending or modifying the REA's. To the Seller's knowledge, the
REA's are valid and in full force and effect, and no payments or deposits are
held by Seller or Seller's agent, except any prepayments for the current month.
As of the Closing Date, no payments due under, or any other interest in, the
REA's will be assigned to any party other than Purchaser, or otherwise pledged
or encumbered in any way by Seller. Except as set forth on Exhibit B, to
Seller's actual knowledge none of the REA Parties has made any claim, whether or
not in writing (A) that Seller is in material default in performing any of its
obligations under any of the REA's which has not heretofore been cured, (B) that
any condition exists which with the passage of time or giving of notice, or
both, would constitute any such material default, (C) that such REA Party is
entitled to any reduction in, refund of, or counterclaim or offset against, or
is otherwise disputing, any charges paid, payable or to become payable by such
REA Party, (D) that such REA Party has exercised any right to cancel its REA or
to be relieved of its operating covenants thereunder, or (E) that there is a
material violation of any of the covenants, conditions or restrictions contained
in such REA. With the exception of delinquencies in the payment of charges
under the REA's which are set forth on Exhibit B, to Seller's actual knowledge,
no material default exists under the REA's. To Seller's actual knowledge, all
of the improvements to be constructed by the developer or owner under the REA's,
or as required under any collateral agreement, plans or specifications related
to the REA's, have been fully completed and paid for. Seller has not granted
any rights, options or rights of first refusal of any kind to the REA Parties to
purchase or otherwise acquire the Project or any part thereof or interest
therein, except as set forth in the REA's.
J. Promotional Association. A promotional association has been established
with respect to the Project (the "Promotional Association"). Seller has made all
contributions required to be made by Seller to the Promotional Association prior
to the date hereof.
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K. Brokerage Agreements. To Seller's actual knowledge, there are no lease
brokerage agreements, leasing commission agreements or other agreements
providing for payments of any amounts for leasing activities or procuring
tenants with respect to the Project.
L. Limitations on Representations and Warranties. As used herein, the term
"Seller's actual knowledge" means the actual knowledge of Sanford M. Villesvik,
the asset manager for the Project, and Sandra Cantrell, the general manager for
the Project, and such persons shall not be obligated to perform any due
diligence investigations or have any personal liability in connection with
making any representations or warranties herein. In no event shall such persons
be deemed to have knowledge of the contents of any documents in Seller's files
unless they were actually aware of such contents at the time in question. All
representations and warranties of Seller in this Agreement shall terminate one
(1) year after the Closing and Seller shall have no liability thereafter with
respect to such representations and warranties except to the extent Purchaser
has given Seller written notice of a breach of the representations and
warranties during such one (1) year period and files a lawsuit with respect
thereto within sixty (60) days after the expiration of such one (1) year period.
If Purchaser has actual knowledge (as defined in Paragraph 4(E) below) at
Closing that any of the Seller's representations or warranties in this Agreement
are not true as of the Closing and Purchaser elects nonetheless to close,
Purchaser shall be deemed to have waived any claim for breach of such
representation or warranty. In addition, Seller shall be relieved of any
liability for the representations and warranties (a) contained in Paragraph 3(G)
with respect to any Tenant Lease to the extent Purchaser has received an
estoppel certificate covering the matters set forth in Paragraph 3(G) from the
party who is the tenant under such Tenant Lease and (b) contained in Paragraph
3(I) with respect to any REA to the extent Purchaser has received an estoppel
certificate covering the matters set forth in Paragraph 3(I) from the other
person or entity which is a party to such REA; provided, however, Seller shall
not be relieved of any liability for the representations and warranties set
forth in Paragraphs 3(G) and 3(I) as a result of the receipt by Purchaser of
estoppel certificates after Closing unless such estoppel certificates confirm
such representations and warranties. Seller shall have no liability for the
breach of any representations or warranties set forth in this Agreement except
to the extent the loss suffered by Purchaser as a result of such breaches
exceeds $100,000 in the aggregate and upon reaching such threshold the liability
of Seller hereunder shall be with respect to the entire claim from the first
dollar, and in no event shall Seller's liability for breaches of the
representations and warranties set forth in Paragraphs 3(C) through 3(K) of this
Agreement exceed $7,500,000 in the aggregate.
M. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT
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MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT
OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE,
QUALITY OR CONDITION OF THE PROJECT, INCLUDING, WITHOUT LIMITATION, THE WATER,
SOIL AND GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROJECT, (C) THE
SUITABILITY OF THE PROJECT FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER
OR ANY TENANT MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROJECT OR
ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE
GOVERNMENTAL AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY,
MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROJECT,
(F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED
INTO THE PROJECT, (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF
THE PROJECT, OR (H) COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR
LAND USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING THE
EXISTENCE IN OR ON THE PROPERTY OF HAZARDOUS MATERIALS OR (I) ANY OTHER MATTER
WITH RESPECT TO THE PROJECT. ADDITIONALLY, NO PERSON ACTING ON BEHALF OF SELLER
IS AUTHORIZED TO MAKE, AND BY EXECUTION HEREOF PURCHASER ACKNOWLEDGES THAT NO
PERSON HAS MADE, ANY REPRESENTATION, AGREEMENT, STATEMENT, WARRANTY, GUARANTY OR
PROMISE REGARDING THE PROJECT OR THE TRANSACTION CONTEMPLATED HEREIN EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT; AND NO SUCH REPRESENTATION, WARRANTY,
AGREEMENT, GUARANTY, STATEMENT OR PROMISE IF ANY, MADE BY ANY PERSON ACTING ON
BEHALF OF SELLER SHALL BE VALID OR BINDING UPON SELLER UNLESS EXPRESSLY SET
FORTH IN THIS AGREEMENT. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT HAVING
BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROJECT, PURCHASER IS RELYING SOLELY
ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR
TO BE PROVIDED BY SELLER EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND
AGREES TO ACCEPT THE PROJECT AT THE CLOSING AND WAIVE ALL OBJECTIONS OR CLAIMS
AGAINST SELLER (INCLUDING, BUT NOT LIMITED TO, ANY RIGHT OR CLAIM OF
CONTRIBUTION) ARISING FROM OR RELATED TO THE PROPERTY OR TO ANY HAZARDOUS
MATERIALS ON THE PROPERTY EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT;
PROVIDED, HOWEVER, PURCHASER SHALL NOT BE DEEMED TO HAVE WAIVED ANY CLAIMS IT
MIGHT HAVE AGAINST SELLER (INCLUDING, BUT NOT LIMITED TO, ANY RIGHT OR CLAIM OF
CONTRIBUTION) ARISING UNDER APPLICABLE LAWS WITH RESPECT TO HAZARDOUS MATERIALS
TO THE EXTENT SUCH CLAIMS ARE BASED ON OBLIGATIONS TO UNAFFILIATED THIRD
PARTIES. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION
PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE PROJECT WAS OBTAINED FROM A
VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR
VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE
ACCURACY, TRUTHFULNESS OR COMPLETENESS OF SUCH INFORMATION EXCEPT AS EXPRESSLY
SET FORTH IN THIS AGREEMENT. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY
VERBAL OR WRITTEN STATEMENT, REPRESENTATION OR INFORMATION PERTAINING TO THE
PROJECT, OR THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER,
CONTRACTOR, AGENT, EMPLOYEE, SERVANT OR
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OTHER PERSON. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PURCHASER
FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
SALE OF THE PROJECT AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS" CONDITION AND
BASIS WITH ALL FAULTS. IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE HAS
BEEN ADJUSTED BY PRIOR NEGOTIATION TO REFLECT THAT ALL OF THE PROJECT IS SOLD BY
SELLER AND PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING. WITHOUT LIMITING
THE FOREGOING, PURCHASER ACKNOWLEDGES THAT THE DRI FOR THE PROJECT MAY REQUIRE
THE CONSTRUCTION OF AN ADDITIONAL PARKING DECK AND THAT THE EXISTING PARKING
DECKS MAY NEED RESURFACING.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby
represents and warrants to, and covenants and agrees with, Seller as of the date
hereof and as of the Closing as follows (all of which representations shall be
deemed automatically remade as of the Closing):
A. Due Organization. Purchaser is a limited partnership organized, validly
existing and in good standing under the laws of the State of Delaware. Purchaser
has full limited partnership power and authority, and is duly authorized, to
execute, enter into, deliver and perform this Agreement and its obligations
hereunder.
B. Power. This Agreement and, as of the Closing Date, all other
agreements, instruments and documents required to be executed or delivered by
Purchaser pursuant hereto have been or will be duly executed and delivered by
Purchaser, and are or will be legal, valid and binding obligations of Purchaser.
No consents and permissions are required to be obtained by Purchaser for the
execution and performance of this Agreement and the other documents to be
executed by Purchaser hereunder. The consummation of the transactions
contemplated herein and the fulfillment of the terms hereof will not result in a
breach of any of the terms or provisions of, or constitute a default under, any
agreement or document to which Purchaser is a party or by which it is bound, or
any order, rule or regulation of any court or of any federal or state regulatory
body or any administrative agency or any other governmental body having
jurisdiction over Purchaser. Notwithstanding the foregoing, in order for this
Agreement to be legally binding on Purchaser, Purchaser must receive the consent
of the Board of Directors of General Growth Properties, Inc. If Purchaser does
not receive such consent by the Due Diligence Deadline, Purchaser shall notify
Seller by the Due Diligence Deadline, in which case this Agreement shall be null
and void and the Earnest Money shall be returned to Purchaser. If Purchaser
does not notify Seller by the Due Diligence Deadline that it has not received
such consent, Purchaser shall be deemed to have obtained such consent, and such
consent shall no longer be a condition to Purchaser's obligations under this
Agreement.
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C. No Proceedings. There is not now pending or, to Purchaser's actual
knowledge, threatened any action, suit or proceeding before any court or
governmental agency or body which, if adversely determined, might materially and
adversely affect Purchaser's ability to perform its obligations hereunder.
D. ERISA. Purchaser is not and is not acting on behalf of an "employee
benefit plan" within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), a "plan" within the meaning
of Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code") or
an entity deemed to hold "plan assets" within the meaning of 29 C.F.R. Section
2510.3-101 of any such employee benefit plan or plans.
E. Limitations on Representations and Warranties. As used herein, the term
"Purchaser's actual knowledge" means the actual knowledge of Joel Bayer, and
such person shall not be obligated to perform any due diligence investigations
or have any personal liability in connection with making any representations or
warranties herein. All representations and warranties of Purchaser in this
Agreement shall terminate one (1) year after the Closing and Purchaser shall
have no liability thereafter with respect to such representations and warranties
except to the extent Seller has given Purchaser written notice of a breach of
the representations and warranties during such one (1) year period and files a
lawsuit with respect thereto within sixty (60) days after the expiration of such
one (1) year period. If Seller has actual knowledge (as defined in Paragraph
3(L) above) at Closing that any of the Purchaser's representations or warranties
in this Agreement are not true as of the Closing and Seller elects nonetheless
to close, Seller shall be deemed to have waived any claim for breach of such
representation or warranty. Purchaser shall have no liability for the breach of
any representations or warranties set forth in this Agreement except to the
extent the loss suffered by Seller as a result of such breaches exceeds $100,000
in the aggregate and upon reaching such threshold the liability of Purchaser
hereunder shall be with respect to the entire claim from the first dollar.
SECTION 5. OPERATION OF THE PROJECT PRIOR TO CLOSING. The Seller shall do
all of the following, from and after the date hereof through and including the
Closing Date:
(a) operate and maintain the Project in the same manner as it is
currently being operated and shall, subject to damage, destruction or loss
to the Project in which event Purchaser shall have the rights set forth in
Section 6(3), cause the Project to be, on the Closing Date, in the same
condition as exists as of the date of this Agreement (normal wear and tear
excepted);
(b) maintain, or cause to be maintained, all existing insurance
carried by Seller on the Improvements;
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(c) without the prior written consent of Purchaser, which, until the
Due Diligence Deadline (as hereinafter defined), shall not be unreasonably
withheld or delayed, and from the Due Diligence Deadline through the
Closing Date may be withheld in Purchaser's sole discretion, not enter
into any agreements affecting the Project, including any tenant leases,
reciprocal easement agreements, easements or contracts which would be
binding on Purchaser after Closing, nor enter into any amendments,
modifications, extensions, or terminations to any agreements affecting the
Project, including any tenant leases, reciprocal easement agreements,
easements or contracts which would be binding on the Purchaser after
Closing. Seller shall provide written notice of any such agreement,
tenant lease, reciprocal easement agreement or contract, or amendment,
modification, extension or termination thereof, together with the name of
the party thereto, the financial terms thereof, including rent, rent
abatements, construction allowances, tenant inducements and credits and
the amount of any commission due, and such other information as may be
reasonably requested by Purchaser. Purchaser shall be deemed to have
given its consent to any agreement or amendment if Purchaser does not
notify Seller of its disapproval within five (5) days after receipt of the
proposed agreement or amendment and the foregoing information;
(d) without the prior written consent of the Purchaser (except in the
case of emergencies), which consent may be withheld in Purchaser's sole
discretion, not make, or obligate itself to make, any material alterations
or modifications to the Project; and
(e) not sell, transfer, exchange, further encumber or grant interests
(including easements) in the Project or any part thereof or engage in
negotiations or discussions with, or otherwise solicit or assist, any
third party relating to the acquisition by such third party of the Project
or the equity interests in Seller.
SECTION 6. CONDITIONS TO CLOSING. In addition to the conditions provided
in other provisions of this Agreement, the parties' obligations to perform their
undertakings provided in this Agreement, are each conditioned on the fulfillment
of each of the following which is a condition to such party's obligation to
perform hereunder (subject to such party's waiver in strict accordance with
Section 8 below):
(1) Seller shall order and cause to be delivered to Purchaser each of
the following as soon as reasonably possible: (i) the Survey, (ii) the
Title Commitment, and (iii) copies of all title exceptions described
therein. Purchaser shall have ten (10) days after receipt of the last of
the foregoing items to disapprove any matters shown on
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the Survey or Title Commitment; and any matters shown on the Survey or
Title Commitment which are not objected to by Purchaser by such date shall
be deemed "Permitted Exceptions". If Purchaser disapproves any such
matters as set forth above, Seller shall have five (5) days in which to
elect by written notice to Purchaser in its sole discretion to correct or
cause to be insured over on or prior to Closing any matters which the
Purchaser has disapproved; provided, however, Seller shall cause (a) the
first mortgage on the Project in favor of PNC Bank to be discharged in any
event on or before the Closing (b) any other monetary liens of a fixed and
ascertainable amount up to $250,000 in the aggregate to be discharged or
insured over on or prior to Closing. If Seller does not elect to correct
or have insured over such matters, Purchaser shall have five (5) business
days after receipt of Seller's election in which to elect either to waive
its objection to such matters in which case such matters shall be deemed
Permitted Exceptions or terminate this Agreement and obtain a refund of
the Earnest Money; and Purchaser shall be deemed to have elected to
terminate this Agreement if Purchaser does not notify Seller of its
election within such five (5) business day period. Notwithstanding
anything to the contrary contained in this Agreement, Seller shall be
required to remove or cure any voluntary exception or encumbrance which
was created or permitted by Seller. If any defects or exceptions that
Seller has elected to remove or cure (or deemed to have elected to, or
required to, remove or cure) have not been removed at least five (5) days
prior to Closing, or provision for their removal or cure by Closing has
not been made to Purchaser's satisfaction, Purchaser may elect, in its
sole discretion: (a) subject to satisfaction of the other conditions to
Closing, to close the purchase of the Project, cure or remove the defects
or exceptions that have not been cured or removed by Seller, and deduct
from the Purchase Price all costs incurred by Purchaser in connection with
its cure or removal of any defect or exception that Seller was obligated
to cure or remove; or (b) to terminate this Agreement, in which event the
Earnest Money shall be immediately returned to Purchaser. As a condition
to Purchaser's obligation to perform its obligations under the terms of
this Agreement, and provided Purchaser has satisfied all obligations of
Purchaser in the Title Commitment, the Title Company shall have issued, or
irrevocably committed in writing to issue, the Title Policy.
Notwithstanding anything to the contrary contained in this Agreement, the
Closing Date shall be extended up to a maximum of thirty (30) days to
accommodate any timing or dates required under this paragraph.
(2) As a condition to each party's obligation to perform hereunder,
the due performance by the other of all undertakings and agreements to be
performed by the other hereunder and the truth of each representation and
warranty
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as set forth herein made pursuant to this Agreement by the other at the
Closing Date; provided, however, if either party cannot remake any of its
representations and warranties as of Closing through no fault of its own,
the other party's sole remedies shall either be to terminate this
Agreement or waive the condition that such representation or warranty be
remade as of Closing.
(3) As a condition to Purchaser's obligation to perform hereunder
(and not as a default), that there shall not have occurred between the
date hereof and the Closing Date, inclusive, destruction of or damage or
loss to the Project (whether or not covered by insurance proceeds) from
any cause whatsoever the cost of which to repair exceeds $1,000,000 in the
aggregate; provided, however, that in the event of such destruction or
damage, Purchaser may elect to proceed with the Closing in which case
Seller shall assign to Purchaser any claims for proceeds from the
insurance policies covering such destruction or damage and Purchaser shall
receive as a credit against the Purchase Price the amount of any
deductible under such insurance policies. If the cost of repairing the
destruction, damage or loss is less than $1,000,000 in the aggregate, the
parties shall proceed with the Closing as provided herein and the cost of
repair shall be deducted from the Purchase Price.
(4) As a condition to Purchaser's obligation to proceed with Closing
(and not as a default), Purchaser shall be satisfied in its sole and
absolute discretion with all aspects of the Property; provided, however,
if Purchaser does not notify Seller by August 13, 1998 (the "Due Diligence
Deadline") that it is not so satisfied, this condition shall be deemed
waived by Purchaser. Purchaser's notice shall be conclusive evidence that
it is dissatisfied with the Property and thereupon this Agreement shall
terminate and the Earnest Money shall be returned to Purchaser.
(5) As a condition to Purchaser's obligation to perform hereunder
(and not as a default), that there shall not have occurred at any time or
times on or before the Closing Date any taking or threatened taking of the
Project or any part thereof or any interest or estate therein by
condemnation, eminent domain or similar proceedings; provided, however,
Purchaser may elect to waive such condition in which case Seller shall
assign to Purchaser at Closing all of Seller's right, title and interest
in and to any proceeds resulting from any such proceeding.
(6) Seller covenants and agrees, and it shall be a condition to
Purchaser's obligation to perform its undertakings hereunder, that from
and after the date hereof, at all reasonable times, Purchaser (and its
agents) shall be permitted access to the Project and all books, records
and
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reports relating to the Tenant Leases, the REA's and the Service Contracts
and the physical condition and historical financial statements for the
Project for the purpose of inspecting same, and Purchaser (and its agents)
shall have the right to photocopy any and all such books, records and
information. All such access shall be at reasonable times and upon
reasonable prior notice to Seller, and Seller shall have the right to have
a representative present at all such times. All information relating to
the Project made available to Purchaser shall be treated as confidential
and not disclosed to any other parties prior to the Closing; provided,
however, Purchaser may disclose such information to its advisors and
lenders for the Project provided such parties agree to keep such
information confidential and not disclose it to any other parties,
provided, further, that Purchaser may make such disclosures as are
required pursuant to any law, rule, regulation or ordinance or pursuant to
the order of any court or governmental authority. Purchaser (and its
agents) shall also have the right to meet with tenants or REA Parties in
the Project to discuss any matters relating to their occupancy in the
Project, provided, however, Seller shall have the right to have a
representative in attendance at all such meetings. Any entry by Purchaser
and its agents on the Project shall be upon reasonable prior notice to
Seller, and Purchaser will indemnify and hold Seller harmless against any
and all injuries, claims, losses, damages and expenses directly and
proximately arising out of its negligence in the performance of any such
entry, inspection or other activities. Prior to any access to the
Project, and upon written request from Seller, Purchaser shall provide
Seller with certificates of insurance in form reasonably satisfactory to
Seller, evidencing that Purchaser has liability insurance in an amount not
less than $5,000,000, which insurance shall name Seller as an additional
insured. Purchaser shall not perform any intrusive testing on the Project
without the Seller's prior written consent, which shall not be
unreasonably withheld; and Purchaser shall repair any damage it causes to
the Project and restore the Project to its original condition.
(7) As a condition to Purchaser's obligation to perform its
obligations hereunder, Seller shall have delivered the required Tenant
Estoppel Certificates and the REA Estoppel Certificates.
(8) As a condition to Purchaser's obligation to perform its
obligations hereunder, at Closing Seller shall deliver to Purchaser the
written consent to the assignment to Purchaser of the Service Contracts
which Seller has agreed in writing prior to the Due Diligence Deadline to
obtain (such consents are hereinafter referred to as the "Service Contract
Party Consents").
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(9) As a condition to Purchaser's obligation to perform its
obligations hereunder, at Closing, there shall be no litigation, including
any arbitration, investigation or other proceeding, pending by or before
any court, arbitrator or governmental or regulatory official, body or
authority nor any decree, order or injunction issued by any such court,
arbitrator or governmental or regulatory official, body or authority and
remaining in effect which does or is likely to prevent or hinder the
performance of Seller's obligations hereunder or materially adversely
affect the Project or the business of Seller.
SECTION 7. CLOSING.
A. Time. The Closing hereunder shall occur on the Closing Date
through an escrow with the Title Company at the offices of Seller's
attorneys.
B. Actions. At the Closing, subject to the satisfaction of all of
the conditions contained in this Agreement, Seller shall convey the
Project to Purchaser; and Purchaser shall pay to Seller the Purchase
Price, plus or minus prorations as set forth herein. The Closing shall
occur through an escrow in form and substance reasonably acceptable to
Seller and Purchaser, the cost of which shall be paid by Seller. Purchaser
shall receive full possession of the Project at Closing, subject only to
the Tenant Leases and Permitted Exceptions.
C. Deliveries.
(1) At the Closing, Purchaser shall receive all of the following, in
form and substance reasonably satisfactory to Purchaser (it being agreed
by Purchaser that the documents attached hereto as exhibits are
satisfactory in form to Purchaser):
(a) a deed in the form attached hereto as Exhibit F executed by
the Seller;
(b) a bill of sale and assignment for the Personal Property in
the form of Exhibit G, executed by Seller;
(c) an assignment of the Service Contracts, in the form of
Exhibit H attached hereto (the "Assignment of Service Contracts"),
executed by Seller, assigning to Purchaser the Service Contracts;
(d) an assignment of the Tenant Leases, in the form of Exhibit
I hereto (the "Assignment of Tenant Leases"), executed by Seller,
together with an assignment of Tenant Leases in recordable form and
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otherwise in the form of Exhibit I with respect to those Tenant
leases which have been recorded or for which a memorandum thereof
has been recorded;
(e) an assignment in recordable form of the REA's, in the form
of Exhibit J hereto (the "Assignment of the REA's"), executed by
Seller;
(f) written acknowledgments (the "Tenant Estoppel
Certificates") from tenants leasing at least 80% of the rentable
square feet in the Project which is occupied by tenants other than
JC Penny, without material deviation from either the form of
Exhibit K attached hereto or the form required under their leases,
dated as of a date not more than sixty (60) days prior to Closing;
(g) a written acknowledgment (the "Penney Estoppel
Certificate") from JC Penney, without material deviation from
either the form of Exhibit L attached hereto or the form required
under the JC Penney lease, dated as of a date not more than sixty
(60) days prior to Closing;
(h) written acknowledgments (the "REA Estoppel Certificates")
from Burdines, Dillard's and Sears, without material deviation from
the form of Exhibit M attached hereto, dated as of a date not more
than sixty (60) days prior to Closing;
(i) notices to each of the tenants under the Tenant Leases,
notifying them of the sale of the Project and directing them to pay
all future rent as Purchaser may direct and notices to each of the
REA Parties notifying them of the sale of the Project and directing
them to pay all future charges as Purchaser may direct;
(j) a closing statement setting forth all prorations and
credits required hereunder;
(k) an affidavit from Seller that it is not a "foreign person"
or subject to withholding requirements under the Foreign Investment
in Real Property Tax Act of 1980, as amended;
(l) the original of all Project Agreements and copies of the
Books and Records to the extent they are in the possession of
Seller or its agents;
(m) all keys and combinations to locks located at the Project;
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(n) all soil reports, engineering studies, consultant reports,
plans and specifications and books and records relating to the
Project which are in the possession of Seller or its managing
agent;
(o) a termination of the existing management agreement for the
Project, which shall include a waiver by the managing agent of all
fees and commissions with respect to any leases, amendments,
expansions or extensions after the Closing Date;
(p) such certificates as Purchaser may reasonably request as to
the authorization on the part of Seller of the execution, delivery
and performance of this Agreement and the authority of the persons
executing and delivering this Agreement and the closing documents
on behalf of Seller.
(q) a written certificate executed on behalf of Seller and
addressed to Purchaser to the effect that all of the
representations and warranties of Seller herein contained are true
and correct in all material respects as of the Closing Date with
the same force and effect as though remade and repeated in full on
and as of the Closing Date or stating the specific respects, if
any, in which any of the representations and warranties is untrue;
provided, however, such certificate shall be subject to the
qualifications and limitations on the representations and
warranties set forth herein;
(r) An opinion or opinions of counsel for Seller dated as of
the Closing Date, in the form of Exhibit N attached hereto and
otherwise in form and substance reasonably acceptable to Purchaser;
(s) the Service Contract Party Consents;
(t) The instruments, documents or certificates as are
customarily required by the Title Company to be executed or
provided by Seller as a condition to the issuance of the Title
Policy at the Closing pursuant to the Title Commitment, including,
without limitation, owner's affidavits, mechanics' lien affidavits,
personal undertakings and ALTA Statements;
(u) Any instruments, documents or certificates required to be
executed by Seller with respect to any state, county or local
transfer taxes applicable to the conveyance of the Project pursuant
to this Agreement; and
(v) Such other documents, instruments or agreements which
Seller is required to deliver to
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Purchaser pursuant to the other provisions of this Agreement or
which Purchaser reasonably may deem necessary or desirable in order
to consummate the transactions contemplated hereunder or to better
vest in Purchaser title to the Project provided such other
documents, instruments and agreements are consistent with the terms
hereof.
In the event Seller is unable to obtain the REA Estoppel
Certificates, the Penney Estoppel Certificate or the Tenant Estoppel
Certificates required herein without material deviation from the forms
attached hereto prior to the Closing Date, Purchaser or Seller may extend
the Closing Date for up to a maximum of thirty (30) days to allow more
time to obtain such estoppel certificates. In the event Seller is unable
to obtain such Estoppel Certificates by the Closing Date, as it may be so
extended, Purchaser shall have the option as its sole and exclusive
remedies of (i) terminating this Agreement or (ii) proceeding with the
Closing and waiving the requirement that it receive such Estoppel
Certificates.
(2) Seller shall have received from Purchaser all of the following,
in form and substance reasonably satisfactory to Seller (it being agreed
by Seller that the documents attached hereto as exhibits are satisfactory
in form to the Seller):
(a) payment of the Purchase Price, plus or minus prorations;
(b) copies of the Assignment of Service Contracts, the
Assignment of Tenant Leases and the Assignment of the REA's,
executed by Purchaser;
(c) An opinion or opinions of counsel for Purchaser, dated as
of the Closing Date, in the form of Exhibit N attached hereto and
otherwise in form and substance reasonably acceptable to Purchaser;
(d) The instruments, documents or certificates as are
customarily required by the Title Company to be executed or
provided by Purchaser as a condition to the issuance of the Title
Policy at the Closing pursuant to the Title Commitment;
(e) Any instruments, documents or certificates required to be
executed by Purchaser with respect to any state, county or local
transfer taxes applicable to the conveyance of the Project pursuant
to this Agreement; and
(f) Such other documents, instruments or agreements which
Purchaser is required to deliver to
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Seller pursuant to the other provisions of this Agreement or which
Seller reasonably may deem necessary or desirable in order to
consummate the transactions contemplated hereunder provided such
other documents, instruments and agreements are consistent with the
terms hereof.
D. Prorations. Subject to the other provisions of this Section, the items
pertaining to the Project that are identified in this Section shall be prorated
between the parties on a per diem basis (employing the actual number of calendar
days in the period involved and a 365-day year) so that credits and charges with
respect to such items for all days preceding the Closing Date shall be allocated
to Seller, and credits and charges with respect to such items for all days
including and after the Closing Date shall be allocated to Purchaser. All
prorations not specifically agreed to herein shall be made in accordance with
customary practice in the county in which the Project is located. This Section
7.D. shall survive the Closing to the extent provided below. The Purchase Price
for the Property shall be subject to prorations and credits as follows to be
determined as of 12:01 A.M. on the Closing Date, the Closing Date being a day of
income and expense to Purchaser:
1. Rents payable under Tenant Leases. Purchaser shall receive a
credit at Closing for all rents collected by Seller prior to the Closing
and allocable to the period from and after the Closing Date. No credit
shall be given the Seller for accrued and unpaid Rent or any other
non-current sums due from tenants until said sums are paid. Any portion
of any rents collected subsequent to the Closing Date and properly
allocable to periods prior to the Closing Date shall be paid, within
thirty (30) days after receipt, to the Seller, but subject to all of the
provisions of this Section hereof; and any portion thereof properly
allocable to periods subsequent to the Closing Date, if any, shall be paid
to Purchaser. Purchaser shall use reasonable efforts for a period of six
(6) months after the Closing Date to collect any rent under the Tenant
Leases which is past due as of the Closing and remit such collections to
Seller within thirty (30) days after receipt; provided, however, Purchaser
shall not be obligated to sue any tenants. Any rent collected from a
tenant by Purchaser shall be applied first to any past due rents owed to
Purchaser and second to any past due rents owed to Seller; and any rent
collected from a tenant by Seller shall be promptly remitted to Purchaser
to the extent there are any past due rents owed to Purchaser; provided,
however, if Seller uses any special efforts to collect any rent, including
filing a lawsuit, any collections by Seller resulting from such special
efforts shall be applied first to any past due rents owed to Seller.
Seller shall have the right to sue tenants for rent accrued for the period
prior to Closing as long as Seller does not sue to terminate any Tenant
Leases or evict any tenants.
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2. Seller shall be entitled to retain all adjustment rent or
escalation payments collected under the Tenant Leases and payable for the
period prior to Closing for taxes, operating expenses and HVAC charges for
the Project, and Purchaser shall retain all such rent or payments payable
for the period after Closing. Purchaser shall be responsible for
adjusting with the tenants all such payments for the year in which the
Closing occurs in accordance with the terms of the Tenant Leases. Upon
any final adjustment for the year in which the Closing occurs, Seller
shall remit to Purchaser for payment to the tenants any adjustment rent or
escalation payments paid to Seller under the Tenant Leases in excess of
the amounts due from the tenants for such taxes and expenses, and any
amounts due Seller from the tenants shall be promptly remitted to Seller
within thirty (30) days after collection from the tenants. Any
collections of adjustment rent or escalation payments from tenants shall
be applied in the same order as set forth above for base rent.
3. Percentage rents payable under any Tenant Leases shall be
preliminarily allocated as of the Closing Date with Seller entitled to any
such percentage rents payable for any period prior to the Closing Date and
Purchaser entitled to any such percentage rents payable for any period
after the Closing Date. Within one hundred twenty (120) days after the
end of the fiscal year for each Tenant Lease, Seller and Purchaser shall
reprorate such percentage rents based on the portion of the fiscal year
for such Tenant Lease during which the Project was owned by Seller and the
portion during which the Project was owned by Purchaser, without regard to
when during such fiscal year such percentage rents were payable.
4. Real estate taxes imposed in respect of the Project for the
current year and to the extent unpaid, for prior years shall be prorated
as of the Closing Date. Such proration shall be based on the amount of
taxes which would be payable, after any applicable discounts, if the taxes
are paid at the earliest possible date, regardless of when such taxes are
actually paid. If the amount of any such taxes have not been determined
as of Closing, such credit shall be based on the most recent ascertainable
taxes and shall be reprorated upon issuance of the final tax bill. Seller
shall also give Purchaser a credit for any special assessments against the
Project which are due and payable prior to Closing.
5. Utilities and fuel, including, without limitation, steam, water,
electricity, gas and oil. The Seller shall cause the meters, if any, for
utilities to be read the day on which the Closing Date occurs and to pay
the bills rendered on the basis of such readings. If any such meter
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reading for any utility is not available, then adjustment therefor shall
be made on the basis of the most recently issued bills therefor which are
based on meter readings no earlier than thirty (30) days prior to the
Closing Date; and such adjustment shall be reprorated when the next
utility bills are received.
6. Charges payable under the Service Contracts assigned to Purchaser
pursuant to this Agreement and any other common area maintenance expenses.
7. Charges payable under the REA's, which charges shall be prorated
in the same manner as set forth above for the proration of rent under the
Tenant Leases.
8. Seller shall assign to Purchaser the balance in the Project's
bank account securing any gift certificates issued by the owner of the
Project for use at the Project, and Purchaser shall assume the obligation
for all such gift certificates.
9. Payments due from the owner of the Project for any media fund or
merchants' association for the Project.
10. At the Closing, Seller shall furnish Purchaser with a schedule
setting forth and certifying, as of the Closing Date, the unapplied and
unreturned portion of any security deposits which have been deposited with
Seller or its agents (or with any predecessor in interest to Seller with
respect to the Project or such predecessor's agents) by any existing
tenants (the "Security Deposits"), and Purchaser shall receive a credit
against the Purchase Price in the amount of such Security Deposits,
together with all interest, if any, accrued thereon and required to be
paid to tenants.
11. Seller and Purchaser acknowledge that it may be difficult to
calculate, as of the day immediately preceding the Closing Date, certain
of the adjustments, apportionments and payments to be made pursuant to
this Section. Accordingly, Seller and Purchaser hereby agree that any
adjustments, apportionments and payments otherwise required to be made as
of the Closing Date may to the extent necessary or desirable be estimated
by Purchaser and Seller based on the most recent available data, and, as
soon as practicable and if necessary from time to time after the Closing
Date, additional adjustments, apportionments and payments shall be made to
adjust for any differences between the actual apportionment or adjustment
and the amount thereof estimated as of the Closing Date. Any errors or
omissions in computing apportionments at the Closing shall be corrected
promptly after their discovery.
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<PAGE> 23
12. Except for amounts expressly required to be settled by assignment
of accounts or deposits pursuant to the above provisions, net prorations
and adjustments made pursuant to this Section as of the Closing Date and
determined as provided herein shall be settled by credit to or against the
Purchase Price at Closing. From time to time after the Closing as further
adjustments are made as herein provided, settlement thereon between Seller
and Purchaser shall be made in cash.
13. Notwithstanding anything to the contrary contained herein, a
final determination of the amounts owing under this Section shall be made
no later than November 30, 1999, and the amounts determined as of such
date to be owing settled in cash no later than ten (10) days thereafter.
No further adjustments or payments shall be required to be made under this
Section thereafter. Any amounts under this Section which are not paid
within thirty (30) days after demand shall bear interest at the rate of
ten percent (10%) per annum.
At least five (5) days prior to Closing, Seller shall deliver to Purchaser
copies of all information and records necessary to support the prorations
hereunder. Purchaser shall give Seller access after Closing to the Project's
books and records at reasonable times and upon reasonable notice at the Project
or the location where such books and records are kept for the purpose of
verifying any reprorations set forth herein.
E. Expenses. Seller shall pay (1) the cost of the Title Policy (defined
below), excluding the cost of any endorsements, (2) the cost of the Survey, (3)
any escrow or closing charge by the Title Company, and (4) any transfer taxes,
documentary stamps or recording fees; provided, however, Purchaser shall be
solely responsible for (a) any such costs incurred in connection with any
mortgage or other financing obtained by Purchaser in connection with the Project
and (b) the costs of any endorsements. Each party shall be solely responsible
for its own legal costs and due diligence expenses.
F. Leasing Costs. Seller shall either pay prior to Closing or give
Purchaser a credit at Closing for the brokerage commissions, tenant improvement
expenses and other leasing costs set forth on Exhibit M. Except as set forth on
Exhibit O, Purchaser shall be responsible for any brokerage commissions, tenant
improvement expenses and other leasing costs in connection with the Tenant
Leases.
G. Parking Deck Repair. Seller covenants and agrees to repair after the
Closing the debonded concrete topping slabs on the Project's parking deck in
accordance with the scope of work set forth in that certain report, dated August
14, 1998, prepared by Architectural Consultants (the "Repair Work"). In order
to secure completion of the Repair Work at Closing, Seller and
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<PAGE> 24
Purchaser shall enter into the Post-Closing Escrow Agreement attached hereto as
Exhibit P. A portion of the Purchase Price in the amount of $600,000 shall not
be disbursed to Purchaser at Closing but instead shall be deposited with the
Title Company and held pursuant to the terms of the Post-Closing Escrow
Agreement for payment of future costs and expenses incurred with respect to the
Repair Work. Any funds remaining in such escrow after completion of the Repair
Work in accordance with the terms of the Post-Closing Escrow Agreement shall be
paid to Seller. In the event that any additional funds are required to complete
the Repair Work, Seller shall promptly pay such additional funds for the Repair
Work.
SECTION 8. WAIVER. Each party hereto may, at any time or times, at its
election, waive any of the conditions to its obligations hereunder by a written
waiver expressly detailing the extent of such waiver (and no other waiver or
alleged waiver by such party shall be effective for any purpose). No such
waiver shall reduce the rights or remedies of such party by reason of any breach
by the other party or parties of any of its or their obligations hereunder.
SECTION 9. BROKERS. Each party represents and warrants to the other that
it has not hired any brokers or finders in connection with the transactions set
forth herein except for LaSalle Partners. Seller shall be obligated to pay any
commissions or fees due LaSalle Partners. Each party shall indemnify and hold
the other party harmless from all loss and liability (including court costs and
reasonable attorneys fees) from breach of the foregoing representation and
warranty by the indemnifying party.
SECTION 10. SURVIVAL; FURTHER INSTRUMENTS. Except as expressly set forth
herein, none of the terms and provisions herein shall survive the Closing. Each
party will, whenever and as often as it shall be requested so to do by the
other, cause to be executed, acknowledged or delivered any and all such further
instruments and documents as may be necessary or proper, in the reasonable
opinion of the requesting party, in order to carry out the intent and purpose of
this Agreement and as is consistent with this Agreement.
SECTION 11. NO THIRD PARTY BENEFITS. This Agreement is made for the sole
benefit of Purchaser and Seller and their respective successors and assigns
(subject to the limitation on assignment set forth in Section 13 below), and no
other person or persons shall have any right or remedy or other legal interest
of any kind under or by reason of this Agreement. Whether or not either party
hereto elects to employ any or all the rights, powers or remedies available to
it hereunder, such party shall have no obligation or liability of any kind to
any third party by reason of this Agreement or by reason of any of such party's
actions or omissions pursuant hereto or otherwise in connection with this
Agreement or the transactions contemplated hereby.
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<PAGE> 25
SECTION 12. REMEDIES. If Purchaser defaults hereunder and such default is
not cured within ten (10) days after written notice thereof from Seller to
Purchaser (except for any failure to pay the Purchase Price which shall be a
default without any requirement for notice or cure periods), Seller's sole
remedy shall be to recover the Earnest Money as liquidated damages. The parties
agree that Seller's damages in the event of a default by Purchaser will be
difficult to determine and that the Earnest Money is a fair estimate of those
damages. If Seller shall default hereunder prior to Closing hereunder and such
default is not cured within ten (10) days after written notice thereof from
Purchaser to Seller, Purchaser shall be entitled as its sole remedies to
terminate this Agreement and obtain a refund of the Earnest Money or to sue for
specific performance of this Agreement. Nothing contained in this Section shall
be deemed to limit the respective indemnification obligations of Seller and
Purchaser for breach of representations, warranties or covenants, or otherwise,
after the Closing Date.
SECTION 13. MISCELLANEOUS. This Agreement (including all Exhibits hereto)
contains the entire agreement between the parties respecting the matters herein
set forth and supersedes all prior agreements between the parties hereto
respecting such matters. The section headings shall not be used in construing
this Agreement. This Agreement shall be construed and enforced in accordance
with the laws of the state where the Project is located. Purchaser may not
assign its rights under this Agreement without the prior written consent of
Seller except to an entity controlling Purchaser, controlled by Purchaser or
under common control with Purchaser. Subject to the preceding sentence, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns. The provisions of this
Agreement may not be amended, changed or modified orally, but only by an
agreement in writing signed by the party against whom any amendment, change or
modification is sought. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute a single document when at least one counterpart has been executed and
delivered by each party hereto. If any term or provision of this Agreement or
the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby and each term
and provision of this Agreement shall be valid and enforced to the fullest
extent permitted by law. Time is of the essence with regard to each provision
of this Agreement. If the final date of any period provided for herein for the
performance of an obligation or for the taking of any action falls on a
Saturday, Sunday or banking holiday, then the time of that period shall be
deemed extended to the next day which is not a Sunday, Saturday or banking
holiday.
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<PAGE> 26
Each and every day described herein shall be deemed to end at 5:00 p.m. Central
Standard Time.
SECTION 14. NOTICES. All notices and other communications which either
party is required or desires to send to the other shall be in writing and shall
be sent by either (a) messenger, (b) nationally recognized overnight courier,
(c) facsimile (provided a copy of any facsimile notice is sent by one of the
other means set forth herein), or (d) registered or certified mail, postage
prepaid, return receipt requested. Notices and other communications shall be
deemed to have been given on the earlier of actual receipt or, in the case of
notices which are sent by mail, the third business day after the date so mailed.
Notices shall be addressed as follows:
(a) To Seller:
c/o LaSalle Advisors Capital Management, Inc.
200 East Randolph Drive
Chicago, Illinois 60601
Attention: Mr. Sanford M. Villesvik
Facsimile No.: (312) 782-4339
with a copy to:
Hagan & Associates
200 East Randolph Drive
Suite 4322
Chicago, Illinois 60601
Attention: Mr. R. K. Hagan
Facsimile No.: (312) 228-2994
(b) To Purchaser:
Coastland Center, L.P.
c/o General Growth Properties, Inc.
110 North Wacker Drive
Chicago, Illinois 60606
Attention: Mr. Joel Bayer
Facsimile No.: (312) 960-5475
with a copy to:
Neal, Gerber & Eisenberg
Two North LaSalle Street
21st Floor
Chicago, Illinois 60602
Attention: Mr. Reuben C. Warshawsky
Facsimile No.: (312) 269-1747
or to such other person and/or address as shall be specified by either party in
a notice given to the other pursuant to the provisions of this Paragraph.
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<PAGE> 27
SECTION 15. ATTORNEYS' FEES. In the event either party institutes legal
proceedings to enforce its rights hereunder, the prevailing party in such
litigation shall be paid all reasonable expenses of the litigation by the losing
party, including its attorneys' fees.
SECTION 16. CONFIDENTIALITY. Seller and Purchaser agree to keep this
Agreement confidential and not disclose or make any public announcements with
respect to the subject matter hereof without the consent of the other party;
provided, however, that nothing herein shall be deemed to limit or impair in any
way any party's ability to disclose the details of or information concerning
this Agreement, the transactions contemplated under this Agreement or the
Project to such party's attorneys, accountants or other advisors or to the
extent such party reasonably deems necessary or desirable pursuant to any court
or governmental order or applicable securities laws or regulations financial
reporting requirements, to obtain the Contract Party Consents, Estoppels or
financing for the acquisition of the Project and to assess the Project in
connection with Purchaser's due diligence examination (including without
limitation contacting tenants and other parties).
SECTION 17. RADON GAS. RADON GAS IS A NATURALLY OCCURRING GAS THAT, WHEN
IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY PRESENT HEALTH
RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT EXCEED
FEDERAL AND STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN FLORIDA. ADDITIONAL
INFORMATION REGARDING RADON AND RADON TESTING MAY BE OBTAINED FROM YOUR COUNTY
PUBLIC HEALTH UNIT.
SECTION 18. ENERGY-EFFICIENCY RATING. PURCHASER MAY HAVE THE PROJECT'S
ENERGY-EFFICIENCY RATING DETERMINED. ADDITIONAL INFORMATION REGARDING ENERGY
EFFICIENCY MAY BE OBTAINED FROM THE FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS.
SECTION 19. INDEMNIFICATION
A. Indemnification by Seller. From and after the Closing, subject to the
qualifications, limitations and conditions set forth elsewhere in this
Agreement, Seller shall indemnify, defend and hold harmless Purchaser and its
shareholders, directors, officers, members, partners, employees, representatives
and agents, and their respective successors and assigns (collectively, the
"INDEMNIFIED PURCHASER PERSONS") from and against any Losses incurred or
suffered by any Indemnified Purchaser Person that results from, relates to or
arises out of (i) the breach or inaccuracy of any representation or warranty
made by Seller in this Agreement or the closing documents delivered by Seller,
(ii) the breach or non-fulfillment by Seller of any of the covenants or
agreements of Seller under this Agreement or the closing documents delivered by
Seller, or (iii) claims made by any tenant or REA Party under the Tenant Leases
or
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<PAGE> 28
the REA's, or by any party under those Service Contracts assigned to Purchaser,
that relate to any actions or events first occurring, or obligations first
accruing, prior to the Closing Date.
B. Indemnification by Purchaser. From and after the Closing, subject to
the qualifications, limitations and conditions set forth elsewhere in this
Agreement, Purchaser shall indemnify, defend and hold harmless Seller and its
shareholders, directors, officers, members, partners employees and agents, and
their respective successors and assigns (collectively the "INDEMNIFIED SELLER
PERSONS") from and against any Losses incurred or suffered by any Indemnified
Seller Person that results from, relates to or arises out of (i) the breach or
inaccuracy of any representation or warranty made by Purchaser in this Agreement
or the closing documents delivered by Purchaser, (ii) the breach or
non-fulfillment by Purchaser of any of the covenants or agreements of Purchaser
under this Agreement or the closing documents delivered by Purchaser, or (iii)
claims made by any tenant or REA Party under the Tenant Leases or the REA's, or
by any party under those Service Contracts assigned to Purchaser, that relate to
any actions or events first occurring, or obligations first accruing, subsequent
to the Closing Date.
C. Indemnification Procedure.
(1) The indemnified party (the "INDEMNIFIED PARTY") shall give the
indemnifying party (the "INDEMNIFYING PARTY") prompt notice of any Losses
incurred (or likely to be incurred) by the Indemnified Party with respect to any
claim or assertion of claims by a third party ("THIRD PARTY CLAIM") for which
indemnification is available hereunder and the Indemnifying Party may (a) prior
to the commencement of any proceedings in connection with such Losses, undertake
the negotiation of any resolution of the dispute relating to such Losses,
including without limitation any settlement or release, or (b) undertake the
defense of any proceeding (including any alternative dispute resolution
proceeding) regarding such Losses by selecting legal counsel who shall be
reasonably acceptable to the Indemnified Party. Each party hereto agrees to
give the other party prompt notice of any Losses (or possible Losses) asserted
against it which might be Losses for which indemnity could be sought against the
other party, but the failure to give such notice shall not release the
Indemnifying Party of its obligations under this Section 19, except to the
extent of the actual harm suffered thereby.
(2) In the event the Indemnifying Party fails to timely undertake
negotiation of any dispute or defend, contest or otherwise protect against any
claim or suit with respect to a Third Party Claim, and to so notify the
Indemnified Party, the Indemnified Party may, but will not be obligated to,
defend, contest or otherwise protect against the same, and make any compromise
or settlement thereof and recover the entire costs
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<PAGE> 29
thereof from the Indemnifying Party, including reasonable attorneys' and
experts' fees, disbursements and all amounts paid as a result of such claim or
suit or the compromise or settlement thereof; provided, however, that if the
Indemnifying Party undertakes negotiation of any dispute and the defense of such
matter in accordance with and subject to the above terms of this Section 19, the
Indemnified Party shall not be entitled to recover from the Indemnifying Party
for its costs incurred thereafter in connection therewith other than the
reasonable costs of investigation undertaken by the Indemnified Party and
reasonable costs of providing assistance. The Indemnified Party shall cooperate
and provide such assistance as the Indemnifying Party may reasonably request in
connection with the negotiation of any dispute and the defense of the matter
subject to indemnification and the Indemnifying Party shall reimburse the
Indemnified Party's reasonable costs incurred thereafter in connection with such
cooperation and assistance.
SECTION 20. LIMITATION ON LIABILITY. This Agreement is entered into by
LaSalle Advisors Capital Management, Inc., a Maryland corporation, as duly
appointed agent and investment manger of the Trustees of LaSalle Fund III and
LaSalle Fund IV and on the express condition that any obligation of such
Trustees, LaSalle Fund III, LaSalle Fund IV or LaSalle Advisors Capital
Management, Inc. or any affiliate shall be enforceable only against, and payable
only out of, the property of LaSalle Fund III and LaSalle Fund IV, and neither
the Trustees nor any beneficiary, officer or employee of LaSalle Fund III or
LaSalle Fund IV or of LaSalle Advisors Capital Management, Inc. or of any
affiliate shall be held to any personal liability whatsoever.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
COASTLAND CENTER JOINT VENTURE
By: DANIEL W. CUMMINGS, STUART L. SCOTT,
ROBERT C. SPOERRI, and LYNN C. THURBER,
not personally, but as Trustees under
that certain Declaration of Trust, dated
August 1, 1985, creating LASALLE FUND
III, a Group Trust, acting through its
agent and manager:
LASALLE ADVISORS CAPITAL
MANAGEMENT, INC.
By:____________________________________
Title:_________________________________
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<PAGE> 30
By: DANIEL W. CUMMINGS, STUART L. SCOTT,
ROBERT C. SPOERRI, and LYNN C. THURBER,
not personally, but as Trustees under
that certain Declaration of Trust, dated
February 1, 1988, creating LASALLE FUND
IV, a Group Trust, acting through its
agent and manager:
LASALLE ADVISORS CAPITAL MANAGEMENT,
INC.
By:____________________________________
Title:_________________________________
COASTLAND CENTER, L.P., a Delaware
limited partnership
By: Coastland Center, Inc., a Delaware
corporation, its general partner
By:____________________________________
Title:_________________________________
30
<PAGE> 31
EXHIBITS
Exhibit A - Legal Description of Land
Exhibit B - Real Estate Operating Agreements
Exhibit C - Litigation
Exhibit D - Service Contracts
Exhibit E - Tenant Leases
Exhibit F - Deed
Exhibit G - Bill of Sale
Exhibit H - Assignment of Service Contracts
Exhibit I - Assignment of Tenant Leases
Exhibit J - Assignment of REA's
Exhibit K - Estoppel Certificates for Tenant Leases
Exhibit L - JC Penny Estoppel Certificate
Exhibit M - Estoppel Certificates for REA's
Exhibit N - Form of Opinion of Counsel
Exhibit O - Seller's Leasing Expenses
Exhibit P - Post-Closing Escrow Agreement
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<PAGE> 32
EXHIBIT F
DEED
________________
<PAGE> 33
EXHIBIT G
BILL OF SALE
-------------
For valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, COASTLAND CENTER JOINT VENTURE, an Illinois general partnership
(hereinafter called "Seller"), hereby assigns and transfers to COASTLAND CENTER,
L.P., a Delaware limited partnership ("Purchaser"), all of Seller's right, title
and interest in and to any and all fixtures, machinery, apparatus, equipment and
other personal property (the "Personal Property") used in the ownership,
operation, repair and maintenance of any of the property described on Exhibit A
(the "Project") attached hereto and made a part hereof, including without
limitation, all tangible and intangible personal property now or hereafter owned
by the Seller and located at and used in connection with the operation of the
Project, including, without limitation, (i) all building and construction
materials, equipment, appliances and machinery owned by Seller and used in
connection with the operation of the Project, (ii) all permits, licenses,
certificates and approvals issued in connection with the Project, (iii) Seller's
rights to use the name of the Project, (iv) inventories, consumables, desktop
computers and peripheral equipment (excluding laptop computers), and data
contained in hard drives and diskettes (excluding budgets, appraisals, market
studies and other confidential information), (v) logos, trademarks, tradenames
and copyrights (excluding the name "LaSalle" or "LaSalle Partners"), and (vi)
copies of the Books and Records.
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<PAGE> 34
TO HAVE AND TO HOLD the Personal Property, subject as aforesaid, unto
Purchaser, its successors and assigns. Seller, for itself, its successors and
assigns, does hereby warrant and will forever defend title to the Personal
Property unto Purchaser, its successors and assigns, against the lawful claims
of all persons, claiming by, through or under Seller, but not otherwise.
IN WITNESS WHEREOF, Seller has caused this instrument to be executed as of
the ____ day of ___________, 1998.
COASTLAND CENTER JOINT VENTURE
By: DANIEL W. CUMMINGS, STUART L. SCOTT,
ROBERT C. SPOERRI, and LYNN C. THURBER,
not personally, but as Trustees under
that certain Declaration of Trust,
dated August 1, 1985, creating LASALLE
FUND III, a Group Trust, acting through
its agent and manager:
LASALLE ADVISORS CAPITAL MANAGEMENT, INC.
By:
----------------------------------
Title:
-------------------------------
By: DANIEL W. CUMMINGS, STUART L. SCOTT,
ROBERT C. SPOERRI, and LYNN C. THURBER,
not personally, but as Trustees under
that certain Declaration of Trust,
dated February 1, 1988, creating
LASALLE FUND IV, a Group Trust, acting
through its agent and manager:
LASALLE ADVISORS CAPITAL MANAGEMENT, INC.
By:
----------------------------------
Title:
-------------------------------
34
<PAGE> 35
EXHIBIT H
ASSIGNMENT OF SERVICE CONTRACTS
-------------------------------
THIS ASSIGNMENT dated , 1998 (the "Assignment"), is entered
into by and between COASTLAND CENTER JOINT VENTURE, an Illinois general
partnership (hereinafter called "Assignor"), and COASTLAND CENTER, L.P., a
Delaware limited partnership ("Assignee").
WITNESSETH:
-----------
WHEREAS, Assignor is a party to those certain service contracts set forth
in Exhibit A attached hereto (the "Service Contracts") with respect to that
certain real property known as Coastland Center in Naples, Florida; and
WHEREAS, Assignor desires to assign its interest in the Service Contracts
to Assignee, and Assignee desires to accept the assignment thereof and assume
the obligations of Assignor thereunder;
NOW, THEREFORE, in consideration of the promises and conditions contained
herein, the parties hereby agree as follows:
1. Effective as of the date hereof, Assignor hereby assigns, conveys,
transfers and sets over to Assignee all of its right, title and interest in and
to the Service Contracts.
2. Assignee hereby assumes all of the Assignor's obligations under the
Service Contracts accruing after the date hereof.
3. This Assignment shall be binding on and inure to the benefit of the
parties hereto, their heirs, executors, administrators, successors in interest
and assigns.
4. This Assignment may be executed in counterparts, each of which shall be
deemed an original and all of which taken together shall be deemed one and the
same instrument.
5. This Assignment is executed in connection with that certain Purchase
and Sale Agreement, dated as of , 1998 (the "Agreement"), by and between
Assignor and Assignee. The rights and obligations of Assignor and Assignee with
respect to indemnification, payment and prorations are set forth in the
Agreement, and nothing herein contained in this Assignment shall supersede the
provisions of the Agreement.
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<PAGE> 36
IN WITNESS WHEREOF, the Assignor and Assignee have executed this Assignment
the day and year first above written.
COASTLAND CENTER JOINT VENTURE
By: DANIEL W. CUMMINGS, STUART L. SCOTT,
ROBERT C. SPOERRI, and LYNN C. THURBER,
not personally, but as Trustees under
that certain Declaration of Trust,
dated August 1, 1985, creating LASALLE
FUND III, a Group Trust, acting through
its agent and manager:
LASALLE ADVISORS CAPITAL MANAGEMENT, INC.
By:
----------------------------------
Title:
-------------------------------
By: DANIEL W. CUMMINGS, STUART L. SCOTT,
ROBERT C. SPOERRI, and LYNN C. THURBER,
not personally, but as Trustees under
that certain Declaration of Trust,
dated February 1, 1988, creating
LASALLE FUND IV, a Group Trust, acting
through its agent and manager:
LASALLE ADVISORS CAPITAL MANAGEMENT, INC.
By:
----------------------------------
Title:
-------------------------------
COASTLAND CENTER, L.P., a Delaware
limited partnership
By: Coastland Center, Inc., a Delaware
corporation, its general partner
By:
----------------------------------
Title:
-------------------------------
36
<PAGE> 37
EXHIBIT I
ASSIGNMENT OF TENANT LEASES
----------------------------
THIS ASSIGNMENT dated ______________, 1998 (the "Assignment"), is entered
into by and between COASTLAND CENTER JOINT VENTURE, an Illinois general
partnership (hereinafter called "Assignor"), and COASTLAND CENTER, L.P., a
Delaware limited partnership ("Assignee").
WITNESSETH:
-----------
WHEREAS, Assignor is the landlord under those certain tenant leases set
forth in Exhibit A attached hereto (the "Tenant Leases") with respect to that
certain real property known as Coastland Center in Naples, Florida; and
WHEREAS, Assignor desires to assign its interest in the Tenant Leases to
Assignee, and Assignee desires to accept the assignment thereof and assume the
obligations of Assignor thereunder;
NOW, THEREFORE, in consideration of the promises and conditions contained
herein, the parties hereby agree as follows:
1. Effective as of the date hereof, Assignor hereby assigns, conveys,
transfers and sets over to Assignee all of its right, title and interest in and
to the Tenant Leases.
2. Assignee hereby assumes all of the Assignor's obligations under the
Tenant Leases accruing after the date hereof.
3. This Assignment shall be binding on and inure to the benefit of the
parties hereto, their heirs, executors, administrators, successors in interest
and assigns.
4. This Assignment may be executed in counterparts, each of which shall be
deemed an original and all of which taken together shall be deemed one and the
same instrument.
5. This Assignment is executed in connection with that certain Purchase
and Sale Agreement, dated as of ____________, 1998 (the "Agreement"), by and
between Assignor and Assignee. The rights and obligations of Assignor and
Assignee with respect to indemnification, payment and prorations are set forth
in the Agreement, and nothing herein contained in this Assignment shall
supersede the provisions of the Agreement.
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<PAGE> 38
IN WITNESS WHEREOF, the Assignor and Assignee have executed this Assignment
the day and year first above written.
COASTLAND CENTER JOINT VENTURE
By: DANIEL W. CUMMINGS, STUART L. SCOTT,
ROBERT C. SPOERRI, and LYNN C. THURBER,
not personally, but as Trustees under
that certain Declaration of Trust,
dated August 1, 1985, creating LASALLE
FUND III, a Group Trust, acting through
its agent and manager:
LASALLE ADVISORS CAPITAL MANAGEMENT, INC.
By:
----------------------------------
Title:
-------------------------------
By: DANIEL W. CUMMINGS, STUART L. SCOTT,
ROBERT C. SPOERRI, and LYNN C. THURBER,
not personally, but as Trustees under
that certain Declaration of Trust,
dated February 1, 1988, creating
LASALLE FUND IV, a Group Trust, acting
through its agent and manager:
LASALLE ADVISORS CAPITAL MANAGEMENT, INC.
By:
----------------------------------
Title:
-------------------------------
COASTLAND CENTER, L.P., a Delaware
limited partnership
By: Coastland Center, Inc., a Delaware
corporation, its general partner
By:
----------------------------------
Title:
-------------------------------
38
<PAGE> 39
EXHIBIT J
ASSIGNMENT OF RECIPROCAL EASEMENT AGREEMENTS
--------------------------------------------
THIS ASSIGNMENT dated _______________, 1998 (the "Assignment"), is entered
into by and between COASTLAND CENTER JOINT VENTURE, an Illinois general
partnership (hereinafter called "Assignor"), and COASTLAND CENTER, L.P., a
Delaware limited partnership ("Assignee").
WITNESSETH: WHEREAS, Assignor is party to those certain reciprocal
easement agreements set forth in Exhibit A attached hereto (the "REA's") with
respect to that certain real property known as Coastland Center in Naples,
Florida; and
WHEREAS, Assignor desires to assign its interest in the REA's to Assignee,
and Assignee desires to accept the assignment thereof and assume the obligations
of Assignor thereunder;
NOW, THEREFORE, in consideration of the promises and conditions contained
herein, the parties hereby agree as follows:
1. Effective as of the date hereof, Assignor hereby assigns, conveys,
transfers and sets over to Assignee all of its right, title and interest in and
to the REA's.
2. Assignee hereby assumes all of the Assignor's obligations under the
REA's accruing after the date hereof.
3. This Assignment shall be binding on and inure to the benefit of the
parties hereto, their heirs, executors, administrators, successors in interest
and assigns.
4. This Assignment may be executed in counterparts, each of which shall be
deemed an original and all of which taken together shall be deemed one and the
same instrument.
5. This Assignment is executed in connection with that certain Purchase
and Sale Agreement, dated as of ____________,1998 (the "Agreement"), by and
between Assignor and Assignee. The rights and obligations of Assignor and
Assignee with respect to indemnification, payment and prorations are set forth
in the Agreement, and nothing herein contained in this Assignment shall
supersede the provisions of the Agreement.
39
<PAGE> 40
IN WITNESS WHEREOF, the Assignor and Assignee have executed this Assignment
the day and year first above written.
COASTLAND CENTER JOINT VENTURE
By: DANIEL W. CUMMINGS, STUART L. SCOTT,
ROBERT C. SPOERRI, and LYNN C. THURBER,
not personally, but as Trustees under
that certain Declaration of Trust,
dated August 1, 1985, creating LASALLE
FUND III, a Group Trust, acting through
its agent and manager:
LASALLE ADVISORS CAPITAL MANAGEMENT, INC.
By:
----------------------------------
Title:
-------------------------------
By: DANIEL W. CUMMINGS, STUART L. SCOTT,
ROBERT C. SPOERRI, and LYNN C. THURBER,
not personally, but as Trustees under
that certain Declaration of Trust,
dated February 1, 1988, creating
LASALLE FUND IV, a Group Trust, acting
through its agent and manager:
LASALLE ADVISORS CAPITAL MANAGEMENT, INC.
By:
----------------------------------
Title:
-------------------------------
COASTLAND CENTER, L.P., a Delaware
limited partnership
By: Coastland Center, Inc., a Delaware
corporation, its general partner
By:
----------------------------------
Title:
-------------------------------
40
<PAGE> 41
EXHIBIT K
TENANT ESTOPPEL CERTIFICATE
---------------------------
41
<PAGE> 42
EXHIBIT M
ESTOPPEL CERTIFICATE
--------------------
To:
--------------------------
------------------------
------------------------
Attention:
-------------------
Property Address: Coastland Center
Naples, Florida
(the "Property")
The undersigned is a party to the reciprocal easement agreement described
in Exhibit A attached hereto for the above-referenced Property (the "REA") and
hereby certifies to you as follows:
(1) The REA has not been modified or amended except as set forth on
Exhibit A and is in full force and effect.
(2) To the undersigned's knowledge, there is no outstanding default under
the REA.
The undersigned has executed this Estoppel Certificate with the knowledge
and understanding that ________________, or an affiliate, is acquiring the
Property in reliance on this Estoppel Certificate and that the undersigned will
be bound by this Estoppel Certificate.
Dated this day of , 19 .
------ ---------- ---
---------------------------------
By:
------------------------------
Title:
------------------------
42
