CONTRIBUTION AND EXCHANGE AGREEMENT
FOR
JANESVILLE MALL
DATED AUGUST_____, 1998
Page TABLE OF CONTENTS
Page
ARTICLE I - BASIC DEFINITIONS. . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - CONTRIBUTION AND EXCHANGE . . . . . . . . . . . . . . . 8
Section 2. l Contribution . . . . . . . . . . . . . . . . . . 8
Section 2.2. Contribution Consideration . . . . . . . . . . . 8
Section 2.3. Assumed Indebtedness . . . . . . . . . . . . . . 9
Section 2.4. OP Units . . . . . . . . . . . . . . . . . . . . 9
Section 2.5. Informational Materials. . . . . . . . . . . . .10
Section 2.6. Registration Rights. . . . . . . . . . . . . . .11
ARTICLE III - ACQUIROR'S DUE DILIGENCE . . . . . . . . . . . . . . .11
Section 3.1 Acquiror's Review and Contributor's
Disclaimer. . . . . . . . . . . . . . . . . . . . . . . . . . .11
Section 3.2 Material Adverse Matters . . . . . . . . . . . .15
Section 3.3 Title Exceptions . . . . . . . . . . . . . . . .18
ARTICLE IV - CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . . .20
Section 4. l Conditions . . . . . . . . . . . . . . . . . . .20
Section 4.2 Failure or Waiver of Conditions Precedent. . . .24
Section 4.3 . . . . . . . . . . . . . . . . . . . . . . . .24
ARTICLE V - COVENANTS WARRANTIES AND REPRESENTATIONS . . . . . . . .25
Section 5.1 Contributor's Warranties and Representations . .25
Section 5.2 Contributor's Covenants. . . . . . . . . . . . .31
Section 5.3 Acquiror's Warranties and Representations. . . .34
Section 5.4 Acquiror's Covenants . . . . . . . . . . . . . .37
Section 5.5 Survival/Limitations/Joinder . . . . . . . . . .41
ARTICLE VI - DEFAULT . . . . . . . . . . . . . . . . . . . . . . . .43
Section 6.1 Acquiror's Deposit and Default . . . . . . . . .43
Section 6.2 Contributor's Default. . . . . . . . . . . . . .44
ARTICLE VII - CLOSING. . . . . . . . . . . . . . . . . . . . . . . .45
Section 7.1 Escrow Arrangements. . . . . . . . . . . . . . .45
Section 7.2 Closing. . . . . . . . . . . . . . . . . . . . .49
Section 7.3 Prorations . . . . . . . . . . . . . . . . . . .50
Section 7.4 Other Closing Costs. . . . . . . . . . . . . . .56
Section 7.5 Further Documentation. . . . . . . . . . . . . .57
Section 7.6 Possession of the Properties . . . . . . . . . .57
Section 7.7 Escrow Instructions. . . . . . . . . . . . . . .57
ARTICLE VIII - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . .57
Section 8.1 Damage or Destruction/Eminent Domain . . . . . .57
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Section 8.2 Fees and Commissions . . . . . . . . . . . . . .58
Section 8.3 Successors and Assigns . . . . . . . . . . . . .59
Section 8.4 Notices. . . . . . . . . . . . . . . . . . . . .59
Section 8.5 Arbitration of Disputes. . . . . . . . . . . . .61
Section 8.6 Acquiror and Contributor Representatives . . . .63
Section 8.7 Time is of the Essence . . . . . . . . . . . . .63
Section 8.8 Incorporation by Reference . . . . . . . . . . .63
Section 8.9 Attorneys Fees . . . . . . . . . . . . . . . . .63
Section 8.10 Construction . . . . . . . . . . . . . . . . . .63
Section 8.11 Governing Law. . . . . . . . . . . . . . . . . .63
Section 8.12 Operating Records. . . . . . . . . . . . . . . .63
Section 8.13 Confidentiality. . . . . . . . . . . . . . . . .63
Section 8.14 Counterparts . . . . . . . . . . . . . . . . . .64
Section 8.15 Entire Agreement . . . . . . . . . . . . . . . .64
Section 8.16 Access to Information. . . . . . . . . . . . . .64
Section 8.17 Waive of Jury Trial. . . . . . . . . . . . . . .65
Section 8.18 Binding Agreement. . . . . . . . . . . . . . . .65
Section 8.19 Code or Treasury Regulation References . . . . .65
Section 8.20 Third Party Beneficiaries. . . . . . . . . . . .65
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DRAFT 8/18/98
CONTRIBUTION AND EXCHANGE AGREEMENT
THIS CONTRIBUTION AND EXCHANGE AGREEMENT ("Agreement') is
made and entered into as of this ____ day of August, 1998, by
and among JANESVILLE PROPERTIES CO. LIMITED PARTNERSHIP, an Ohio
limited partnership ("Contributor"), and CBL & ASSOCIATES
LIMITED PARTNERSHIP, a Delaware limited partnership
("Acquiror").
RECITALS
A. Contributor is the owner of an enclosed mall regional
shopping center, known as "Janesville Mall", located in
Janesville, Wisconsin, as described on the Deed attached hereto
as EXHIBIT A (the "Property").
B. Subject to the terms and conditions set forth in this
Agreement, Acquiror desires to acquire the Property from
Contributor and Contributor desires to contribute the Property
to Acquiror, in exchange for OP Units (hereinafter defined) in
Acquiror.
AGREEMENT
NOW, THEREFORE, Acquiror and Contributor do hereby agree as
follows:
ARTICLE I
BASIC DEFINITIONS
"Accredited Investor" shall mean an "accredited investor"
as such term is defined in Regulation D promulgated under the
Securities Act (as hereinafter defined).
"Additional Exceptions" shall have the meaning set forth in
SECTION 3.3(A).
"Additional Title Exception Notice" shall have the meaning
set forth in SECTION 3.3(B).
"Adjustments" shall mean Contributor's Closing Costs, any
prorations described in SECTION 7.3 below and other adjustments
set forth in this Agreement.
"Adverse Matters" shall mean any material facts or
circumstances relating to the status of the Property
constituting inaccuracies in the Disclosure Materials or matters
discovered in the course of on-site inspections of the Property
(provided that any such matters which are reimbursable by tenants
pursuant to the terms of the Leases shall not be "Adverse
Matters" for
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purposes of this Agreement) that are identified by Acquiror
prior to the expiration of the Confirmation Period in
accordance with the provisions of this Agreement and that
diminish the fair market value of such Property; provided,
however, that in no event shall any of the following constitute
Adverse Matters: (i) any matters included or disclosed in the
Disclosure Materials set forth in the Disclosure Materials List &
Statement, (ii) economic, competitive, general or specific market
conditions, (iii) the Permitted Exceptions, (iv) methodologies of
or express assumptions in financial projections, calculations or
reports included within the Disclosure Materials set forth in the
Disclosure Materials List & Statement, or (v) any matters
otherwise known by Acquiror as of the date of this Agreement.
"Adverse Matters Amount" shall mean the amount, if any, of
any decrease in the fair market value of the Property caused by
any Adverse Matters relating to the Property, after netting
against such decrease the amount of any increase in the fair
market value of the Property resulting from the discovery prior
to the expiration of the Confirmation Period of any inaccuracies
in the rent roll contained in the Disclosure Materials.
"Assumed Indebtedness" shall mean the indebtedness which is
secured by mortgages and related encumbrances on, and loan
documents relating to, the Property as set forth on EXHIBIT B
hereof.
"Assumed Indebtedness Guarantors" shall mean all persons and
entities having any liability as a guarantor, indemnitor, surety
or the like under the Assumed Loan Documents and all persons and
entities having personal liability for all or any portion of the
Assumed Indebtedness, including, without limitation, any personal
liability for any so-called "carve outs" or exceptions to non-
recourse liability under any of the Assumed Loan Documents.
"Assumed Indebtedness Lender" shall mean the current
noteholder or lender of any of the Assumed Indebtedness.
"Assumed Loan Documents" shall mean all notes, mortgages,
assignments of rents and leases, security agreements and other
loan documents evidencing, securing or providing for the Assumed
Indebtedness as set forth on EXHIBIT B.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a federal holiday.
"CERCLA" shall mean the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. section9601 et
seq., as amended.
"Close" or "Closing" shall have the meaning set forth in
SECTION 7.2.
"Closing Date" shall mean August 27, 1998, unless extended
pursuant to the provisions of SECTION 3.2 OR SECTION 4.1(C)
hereof; provided, however, that in the event that the Closing has
not occurred by August 31, 1998, Contributor may, at its sole
discretion,
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terminate this Agreement, by giving notice to Acquiror
within seven (7) days thereafter, as to which time shall
be of the essence, provided that Meridian and Sellers under each
of the Other Agreements shall have also terminated the Other
Agreements, in which event the Deposit shall be returned to
Acquiror and no party shall have any further obligations
hereunder.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Confidentiality Agreement" shall mean that certain
Confidentiality Agreement dated March 24, 1998, as clarified by
letter from Acquiror to Bill Frauenhofer of Salomon Smith Barney
dated March 25, 1998, executed by Acquiror for the benefit of
Contributor with respect to the Disclosure Materials and this
transaction.
"Confirmation Letter" shall mean the letter in the form of
EXHIBIT C, attached hereto and made a part hereof, to be
delivered by Acquiror to Contributor on or prior to the close of
the Confirmation Period pursuant to SECTION 3.2.
"Confirmation Period" shall mean the period commencing on
June 3, 1998, and ending at 5:00 p.m. Eastern Standard Time on
July 8, 1998; provided, however, that the Confirmation Period may
expire earlier, at Acquiror's election, upon delivery by Acquiror
to Contributor of the Confirmation Letter, in which event
Acquiror shall be deemed to have absolutely and conclusively
waived any further Confirmation Period.
"Contract Period" shall mean the period from the date of
this Agreement through and including the Closing Date.
"Contracts" shall mean all maintenance, service and other
operating contracts, equipment leases and other arrangements or
agreements to which the Contributor is a party, affecting the
ownership, repair, maintenance, management, leasing or operation
of the Property, but excluding all Leases.
"Contributor Related Parties" shall mean each of the Assumed
Indebtedness Guarantors and the respective direct and indirect
partners, members, managers, shareholders, officers, directors,
affiliates and agents of each of the Contributor and the Assumed
Indebtedness Guarantors, and the respective heirs, executors,
administrators, personal representatives, successors and assigns
of each of the foregoing.
"Contributor's Closing Costs" shall mean those closing costs
for which Contributor is responsible pursuant to SECTIONS 7.2 AND
7.3 hereof.
"Deed" shall mean a limited warranty deed in the form
attached hereto as EXHIBIT A, which will convey title to the
Property subject to the Permitted Exceptions. The Deed shall
recite that it is also subject to all other matters on record.
"Deposit" shall have the meaning set forth in SECTION 6.1.
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"Disclosure Materials" shall mean all those materials
relating to the Property that are generally described in Section
A of the Disclosure Materials List & Statement, all of which have
been made available to Acquiror in a so-called "data room"
containing files of information on the Property.
"Disclosure Materials List & Statement" shall mean the list
of Disclosure Materials and the statements relating to the
Property set forth on EXHIBIT D.
"Environmental Laws" shall mean all applicable federal,
state and local laws, rules, regulations, codes, policies and
ordinances, and binding determinations, orders, permits,
licenses, injunctions, writs, decrees or rulings of any
governmental or judicial authority, relative to or that govern
air quality, soil quality, water quality, wetlands, solid waste,
hazardous waste, hazardous or toxic substances, pollution or the
protection of public health, human health or the environment,
including, but not limited to, CERCLA, the Hazardous Material
Transportation Act (49 U.S.C. section 1801 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. section 1251 et seq.), the Safe
Drinking Water Act (42 U.S.C. section 201 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. section 6901 et seq.), the
Clean Air Act (42 U.S.C. section 7401 et seq.), the Toxic Substances
Control Act (15 U.S.C. section 2601 et seq.), the Federal Insecticide,
Fungicide, and Rodenticide Act (7 U.S.C. section 136 et seq.), and the
Occupational Safety and Health Act of 1970 (29 U.S.C. section 651 et
seq.), as each of these laws may have been amended, and any
analogous or related, federal, state or local statutes and the
regulations promulgated pursuant thereto whether currently in
existence or hereafter enacted.
"Equipment" shall mean all of the following items (if any)
to the extent owned or leased by the Contributor: all fixtures,
fittings, appliances, apparatus, equipment, supplies, machinery,
carpeting and other materials installed, located or stored on the
Property, and other personal property and any replacements
thereof, or additions thereto, actually or constructively
affixed, or attached to the Property, or placed upon, under or
used in any way in connection with the complete and comfortable
use, enjoyment, occupancy and/or operation of the Property,
including, without limitation, all parts of the plumbing,
heating, ventilating, air-conditioning, electrical and mechanical
systems of the Improvements; elevators; incinerators; trash
compactors; all equipment, materials and supplies used or usable
in connection with the maintenance, repair and cleaning of the
Property and the interior and exterior of all Improvements; all
racks or similar apparatus necessary for the placement and/or
retention of broadcasting antennae or other telecommunication
equipment and property on the roof of or otherwise within or
about the Improvements; all keys and master keys; all built-in
equipment; all heating, air-conditioning, freezing, lighting,
incinerating and power equipment; lampposts; all electrical
equipment, transformers, wiring, conduit, meters, fixtures aid
apparatus; engines; pipes; pumps; tanks; motors; hydraulic
equipment; conduits; lifting, cleaning, fire prevention, fire
extinguishing, smoke detection, refrigerating, ventilating and
communications apparatus; boilers, furnaces, oil burners or units
thereof and any firing and control apparatus used in connection
therewith; appliances; air-cooling and air-conditioning
apparatus; vacuum cleaning systems; storage systems; built-in or
attached shelving; shades; awnings; windows; attached cabinets;
partitions; ducts and compressors; rugs and carpets; draperies;
landscaping,
4
sod, arbors, shrubs, plants, trees, planters and
planting beds or boxes; retaining walls and enclosures;
directories; mailboxes; signs; television or radio antennae;
together with all building materials and equipment now or
hereafter delivered to the Property and intended to be installed
therein, thereon or thereunder, including but not limited to,
lumber, plaster, cement, plumbing, fixtures, pipe, lath,
wallboard, cabinets, nails, sinks, toilets, furnaces, heaters,
brick, tile, water heaters, glass, doors, flooring, paint,
lighting fixtures, heating and ventilating appliances and
equipment, locks and lockets; together with all additions,
accessions, proceeds, products, replacements, renewals and
substitutions of and for all of the foregoing, including without
limitation those items listed on EXHIBIT E.
"Exchange" shall mean the transfer of the Property in
exchange for OP Units.
"Governmental Authorities" shall mean all agencies, bureaus,
departments and officials of federal, state, county, municipal
and local governments and public authorities.
"Gross Contribution Consideration" shall mean the total
consideration to be paid to Contributor by Acquiror prior to
Adjustments and other deductions set forth in SECTION 2.2.
"Hazardous Materials" shall mean any pollutant, contaminant,
substance or waste containing hazardous substances, as those
terms are defined or listed in CERCLA, and any other individual
or class of pollutants, contaminants, wastes or materials
defined, listed, designated, regulated, classified or identified
under any applicable Environmental Laws. This definition of
Hazardous Materials includes friable asbestos, petroleum or
petroleum-based products, radioactive materials, flammable
explosives and polychlorinated biphenyls.
"Improvements" shall mean any and all structures, buildings,
facilities, parking areas or other improvements situated on the
Real Property and owned by the Contributor, together with all
Equipment situated on the Real Property, to the extent that such
Equipment constitutes a fixture.
"In-Negotiation Leases" shall mean those leases or
modifications to existing Leases listed on EXHIBIT F.
"Intangible Property" shall mean the right, title and
interest (if any) of the Contributor in: (a) any and all
permits, entitlements, filings, building plans, specifications
and working drawings, certificates of occupancy, operating
permits, sign permits, development rights and approvals,
certificates, licenses, warranties (including, without limitation
the roof warranties listed on EXHIBIT G) and guarantees,
engineering, soils, pest control, survey, environmental,
appraisal, market and other reports relating to the Property,
(b) all trade names, service marks, designations and logos, and
the appurtenant goodwill, and all tenant lists, advertising
materials and telephone exchange numbers identified with the
Property, (c) all books, records, files and correspondence
relating to the Property, and (d) all other transferable
intangible property, miscellaneous rights, benefits or privileges
of any kind or character with respect to the Property, provided
that the Intangible Property shall not include claims, actions,
causes of
5
actions, judgments, accounts receivable, cash, securities and cash
equivalents, or the name of the Contributor, but shall specifically
include the name "Janesville Mall" and any variations thereof.
"KeyBank" shall mean KeyBank National Association.
"KeyBank Loan" shall have the meaning set forth in
SECTION 2.2.
"Land" shall mean the real property described in the legal
description attached to the Deed.
"Lease List" shall mean the list of Leases set forth on
EXHIBIT H.
"Leases" shall mean all leases, rental agreements or other
agreements (including all renewals, amendments or modifications
thereto) which entitle any person to the occupancy or use of any
portion of the Real Property and all guarantees thereof.
"Legal Requirements" shall mean all statutes, laws,
ordinances, rules, regulations, executive orders and requirements
of all Governmental Authorities which are applicable to the
Property or any part thereof or the use or manner of use thereof,
or to the owners, tenants or occupants thereof in connection with
such ownership, occupancy or use, including, without limitation,
Environmental Laws.
"Letter of Credit" shall mean an unconditional, irrevocable,
renewable and transferable demand letter of credit, the
beneficiary of which shall be Acquiror or Contributor as the case
may be, substantially in the form(s) set forth in EXHIBIT I.
"Materiality Threshold Amount" shall mean Five Hundred
Thousand Dollars ($500,000).
"Meridian Property" shall mean that certain shopping center
and outlots thereto located in the Township of Meridian, County
of Ingham and State of Michigan, which is owned by Meridian Mall
Associates Limited LLC, an Ohio limited liability company, and
other related entities being acquired by Acquiror.
"Meridian Transaction" shall mean the transaction in which
Acquiror shall acquire the Meridian Property and/or interests in
the entities which own the Meridian Property.
"Net Contribution Consideration" shall have the meaning set
forth in SECTION 2.2.
"OP Unit Recipients" shall mean all partners of the
Contributor, each of which shall receive OP Units at the Closing,
as set forth on EXHIBIT J attached hereto and made a part hereof,
and their respective heirs, personal representatives, successors
and assigns permitted in accordance with this Agreement and the
Partnership Agreement.
6
"OP Units" shall mean Class A Common Units of Acquiror, to
be issued pursuant to the provisions of Section 4.4 of the
Partnership Agreement, which shall be entitled to the same rights
and privileges as Acquiror's currently outstanding Common Units
except as set forth in the Acknowledgment in the form attached
hereto as EXHIBIT K (the "Acknowledgment").
"Other Agreements" shall mean the Contribution, Exchange and
Sale Agreement dated of even date herewith concerning the
Meridian Property and the Purchase Agreements of even date
herewith concerning certain outlots to the Meridian Property.
"Partnership Agreement" shall mean the Second Amended and
Restated Agreement of Limited Partnership of Acquiror, dated
June 30, 1998, attached hereto as EXHIBIT M.
"Penney" shall mean J C Penney Company, Inc., a Delaware
corporation.
"Permitted Exceptions" shall mean the various matters
affecting title to the Properties that are approved or deemed
approved by Acquiror pursuant to SECTION 3.3(C).
"Personal Property" shall mean all Equipment, furniture,
furnishings, trade fixtures and other tangible personal property
directly or indirectly owned by Contributor, that is located at
and used in connection with the operation of the Real Property.
"Property" shall mean the shopping center property known as
"Janesville Mall", which is comprised of the Real Property,
Personal Property, Leases, Contracts and Intangible Property that
is a part thereof.
"Real Property" shall mean the Land, the Improvements and
all rights, privileges, easements, and appurtenances to the Land
or the Improvements, including, without limitation, (i) any air,
development, water, hydrocarbon or mineral rights held by the
Contributor, (ii) all licenses, easements, rights-of-way, claims,
rights or benefits, covenants, conditions and servitudes and
other appurtenances used or connected with the beneficial use or
enjoyment of the Land or the Improvements, (iii) all rights or
interests relating to any roads, alleys or parking areas adjacent
to or servicing the Land or the Improvements, and (iv) all
condemnation awards to be made in lieu of any of the foregoing,
or for damages to the Real Property by reason of the change of
grade of any street, highway or avenue.
"Realty" shall mean JCP Realty, Inc., a subsidiary of Penney
and a limited partner of Contributor.
"Registration Rights Agreement" shall mean EXHIBIT N hereof.
"REIT" shall mean CBL & Associates Properties, Inc., a
Delaware corporation.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
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"Stock" shall mean the common stock of the REIT.
"Subsidiary Partnership" shall mean any partnership in which
Acquiror has or may acquire in the future a direct or indirect
interest.
"Surviving Covenants" shall mean those covenants set forth
in Sections 3.1(c) and (d) and Section 8.2, as well as those
covenants which survive pursuant to their express provisions.
"Termination Trigger Amount" shall mean One Million Dollars
($1,000,000.00).
"Title Company" shall mean Lawyers Title Insurance Company.
"Title Report" shall mean the Lawyers Title Insurance
Company Case No.172968i1 dated August 6, 1998, issued with
respect to the Real Property for the benefit of Contributor and
Aquiror, as their interests may appear.
"Treasury Regulation" shall mean any regulation promulgated
by the United States Department of Treasury under the Code
"Unadjusted Stock Price" shall mean the weighted (by trading
volume) average daily closing price of the Stock on the New York
Stock Exchange during the fifteen (15) trading days prior to the
date which is five (5) days prior to the Closing Date.
"Violations" shall mean violations of Legal Requirements
with respect to the Property.
"Wisconsin Power Loan" shall mean the three percent (3%)
loan from Wisconsin Power & Light Co. to Contributor in the
original amount of Twenty Thousand Five Hundred Dollars ($20,500)
with interest at the rate of three percent (3%) payable in
seventy-two (72) monthly installments of the Three Hundred Two
Dollars ($302.00) each beginning August 1, 1998.
ARTICLE II
CONTRIBUTION AND EXCHANGE
Section 2. l Contribution. Contributor agrees to
contribute and convey to Acquiror, and Acquiror agrees to accept
and assume from Contributor, for the Net Contribution
Consideration and on the terms and conditions set forth in this
Agreement, fee simple title to the Real Property and good and
valid title to the remainder of the Property.
Section 2.2. Contribution Consideration. The Gross
Contribution Consideration shall be Thirty-Three Million Two
Hundred Twenty-Five Dollars ($33,225,000) and shall be paid to
Contributor less (a) Adjustments which reduce the Gross
Contribution Consideration;
8
(b) the amount of the Assumed Indebtedness (including accrued
interest and all other sums due thereunder); (c) the amount of the
Wisconsin Power Loan (including accrued interest and all other sums
due thereunder); and (d) the amount of Contributor's unsecured
construction loan from KeyBank (including accrued interest and all
other sums due thereunder) (the "KeyBank Loan"), plus any Adjustments
which increase the Gross Contribution Consideration (i.e., the Net
Contribution Consideration). The Net Contribution Consideration
shall be paid entirely in OP Units having a value (determined
pursuant to the formula specified below) equal to the Net
Contribution Consideration. Provided that all conditions
precedent to Acquiror's obligations to Close as set forth in this
Agreement have been satisfied and fulfilled, or waived in writing
by Acquiror, the Net Contribution Consideration shall be paid to
Contributor at Closing pursuant to SECTION 7.2.
Section 2.3. Assumed Indebtedness. Subject to the terms
of this Agreement, Acquiror shall accept and assume as of the
Closing Date (i)all of the Assumed Indebtedness; and (ii) the
obligation to repay the principal balance and accrued interest of
the KeyBank Loan and the Wisconsin Power Loan, to the extent that
Acquiror receives a reduction in the Gross Contribution
Consideration on account thereof.
Section 2.4. OP Units.
(a) The Net Contribution Consideration shall be paid
by issuance of OP Units to Contributor (or to the OP Unit
Recipients on the direction of Contributor). Contributor
acknowledges that the OP Units are not certificated and
that, therefore, the issuance of the OP Units shall be
evidenced by the execution and delivery by Acquiror's
general partner of the Acknowledgment.
(b) The number of OP Units to be delivered in
satisfaction of payment of the Net Contribution
Consideration shall be the number obtained by dividing the
Net Contribution Consideration by the Unadjusted Stock
Price. Contributor and Acquiror hereby agree, conclusively
and unconditionally, that such determination as to the
number of OP Units comprising the Net Contribution
Consideration shall be made based upon the Unadjusted Stock
Price, regardless of the price per share of Stock (or any
other securities of the REIT) on the day of Closing, or at
any time before or after Closing. If such calculation would
result in a fractional number of OP Units to be delivered,
the Acquiror shall pay the fractional amount in cash so as
to provide for delivery of a round number of OP Units.
(c) Prior to the date hereof, Contributor has caused
each of its partners to deliver to Acquiror a completed
questionnaire ("Investor Questionnaire") providing
information concerning each OP Unit Recipient's status as an
Accredited Investor. On the basis of the information set
forth in the Investor Questionnaires, Acquiror agrees to
permit each partner of Contributor to become an OP Unit
Recipient and to be admitted as a limited partner in
Acquiror provided that this transaction Closes in accordance
with its terms and each such partner of Contributor executes
an Acknowledgment.
9
(d) Contributor hereby covenants and agrees that it
shall deliver or shall cause each OP Unit Recipient to
deliver to Acquiror, or to any other party designated by
Acquiror, any documentation that may be required under the
Partnership Agreement or any charter document of the REIT,
and such other information and documentation as may
reasonably be requested by Acquiror, at such time as any OP
Units are exchanged for Stock. The preceding covenant shall
survive the Closing and shall not merge into any of the
conveyancing documentation delivered at Closing.
(e) The parties acknowledge that Contributor and
Acquiror intend to treat the Exchange as a tax-free
partnership contribution pursuant to Section 721 of the Code
(except to the extent resulting from the application of
Section 7.4(b) hereof). Acquiror shall cooperate in all
reasonable respects with Contributor to effectuate such
treatment of the Exchange; provided that so long as Acquiror
shall perform in accordance with the terms of this Agreement
and shall not be in breach of any representations,
warranties or covenants set forth herein, (i) Acquiror shall
have no liability whatsoever for any tax liability or
related expenses of Contributor or any OP Unit Recipient
except as expressly provided herein, and (ii) Acquiror shall
have no obligation to incur any cost, expense or liability,
except as expressly provided herein, unless Contributor has
agreed to reimburse and/or indemnify Acquiror to Acquiror's
reasonable satisfaction in connection therewith.
Section 2.5. Informational Materials. A true and
correct copy of the Partnership Agreement has been furnished by
Acquiror to Contributor. Contributor hereby covenants and agrees
that, prior to the Closing, it shall cause each OP Unit Recipient
to deliver to Acquiror an acknowledgment that the ownership of OP
Units by each OP Unit Recipient and its respective rights and
obligations as a limited partner of the Acquiror (including,
without limitation their right to transfer, encumber, pledge and
exchange OP Units) shall be subject to all of the express
limitations, terms, provisions and restrictions set forth in the
Partnership Agreement. In that regard, Contributor hereby
covenants and agrees that, at Closing, each of the OP Unit
Recipients shall execute any and all documentation reasonably
required by the Acquiror and the REIT to formally memorialize the
provisions of this Section 2.5. Contributor further acknowledges
that it has received and reviewed, prior to the date of this
Agreement, the REIT's Annual Report on Form 10-K and Annual
Report to Shareholders for the year ended December 31, 1997, the
REIT's Proxy Statement soliciting proxy materials in connection
with the REIT's 1997 annual meeting, the REIT's Quarterly Report
on Form 10-Q for the quarter ended March 31, 1998 and all forms
8-K filed by the REIT with the SEC Subsequent to December 31,
1997 and all press releases of the REIT since that date and
Contributor agrees and covenants that each OP Unit Recipient
shall so acknowledge on or prior to the Closing Date. All of the
materials and information referred to in this SECTION 2.5 are
listed on EXHIBIT O hereto and shall be collectively referred to
as "Informational Materials."
10
Section 2.6. Registration Rights. At Closing, Acquiror
shall cause the REIT to confer to each OP Unit Recipient the
benefits of the Registration Rights Agreement, a copy of which
has been delivered to Contributor and is attached hereto as
EXHIBIT N.
ARTICLE III
ACQUIROR'S DUE DILIGENCE
Section 3.1 Acquiror's Review and Contributor's
Disclaimer.
(a) Acquiror acknowledges that Contributor has
afforded Acquiror and Acquiror's agents and representatives
the opportunity to review all of the Disclosure Materials
prior to the date of this Agreement and will continue to
make them available hereafter. In addition to the
Disclosure Materials, and subject to subparagraph (b) below,
Contributor will make the Property available for inspection
by Acquiror and/or Acquirors representatives and agents and
such parties shall, at Acquiror's risk, be entitled to
conduct one or more property condition inspections and
environmental audits of the Property and in connection with
any of the foregoing to undertake such reasonable and
customary physical, environmental and other evaluations
and/or investigations and/or inspections of the Property as
Acquiror and/or its representatives or agents deems
appropriate.
Acquiror's rights hereunder shall, without limitation
specifically include the following:
(i) The Acquiror and/or Acquiror's
representatives and agents shall have the right,
subject to the rights of tenants under their respective
Leases, to evaluate and inspect the physical properties
and structures of all Improvements on the Property, the
geological character of the Property, the compliance of
the Property with all Legal Requirements, the status of
operations and title of the Property and matters of the
survey, availability of utilities, maintenance status
and other matters pertaining to the condition of the
Property collectively (the "Property Condition");
(ii) The Acquiror and its representatives and
agents shall have the right to conduct such interviews
with tenants and/or adjoining property owners as
Acquiror desires and Contributor shall facilitate the
same; and
(iii) The Acquiror and/or Acquiror's
representatives and agents shall have the right to
examine the environmental status, compliance, quality
and condition of the Property, including any and all
Improvements and the subsurface thereof, and all
adjacent and proximate properties (subject to the
rights of the owners and/or occupants of such adjacent
and proximate properties) (the "Environmental Status").
11
Contributor shall also provide Acquiror with access to
the Property and all books, records, files and documents
pertaining to the Property in Contributor's or Contributor's
managing agent's possession or at Contributor's reasonable
disposal at all reasonable times.
(b) Acquiror's exercise of the rights of review and
confirmation set forth in subsection (a) above shall be
subject to the following limitations: (i) any entry onto the
Property by Acquiror, its agents or representatives, shall
be during normal business hours following reasonable prior
notice to Contributor and at Contributor's discretion,
accompanied by a representative of Contributor, (ii)
Acquiror shall not conduct any drilling, test borings or
other disturbance of the Property for review of soils,
compaction, environmental, structural or other conditions
without the prior written consent of the Contributor as to
the location and the time of such testing which, at
Contributor's discretion, shall be performed in the presence
of a representative of Contributor, (iii) any discussions or
interviews with any constituent partner, member, manager,
shareholder, officer or director of Contributor or any
tenants of the Property or their personnel, at Contributor's
discretion, shall be conducted in the presence of
Contributor or its representatives, (iv) any discussions or
interviews with employees at the Property shall, at
Contributor's election, be conducted in the presence of
Contributor or their representatives, (v) Acquiror shall
exercise reasonable diligence not to disturb the use or
occupancy or the conduct of business at the Property and
(vi) Acquiror shall indemnify, protect, defend and hold
Contributor and the Contributor Related Parties harmless
from and against any and all claims, demands, losses,
damages, liabilities, causes of action, liens, costs and
expenses, including, without limitation, reasonable
attorneys' fees and costs (to the extent permitted by law)
(but expressly excluding consequential or punitive damages)
related to or arising out of any entry or inspections
performed by Acquiror, its agents or representatives
pursuant to clause (ii) of this SECTION 3.1(B) or otherwise
in violation of the provisions of this SECTION 3.1(B), and
Acquiror, at Acquiror's sole cost and expense, shall
promptly restore the Property and any damage caused to the
Property by any such inspection; provided that except as
expressly set forth herein, Acquiror shall have no liability
to Contributor arising from (x) any physical condition of or
the presence or disturbance of any Hazardous Material at the
Property existing prior to Acquiror's (or its
representatives' or agents') entry, whether known or unknown
to Contributor, or (y) any acts or omissions of Contributor
or its employees, agents or contractors (including, without
limitation, any damage due to errors or omissions in
information provided to Acquiror or its employees, agents or
contractors relating to environmental matters. Contributor
shall at all times exercise reasonable diligence in
providing Acquiror with access or information that Acquiror
requests, but shall bear no liability if Contributor is not
able despite reasonable efforts to afford Acquiror such
access or information. If Contributor elects to be present
during the Acquiror's exercise of the rights of review and
confirmation as provided herein, the Contributor shall make
its representative available in a timely fashion so as not
to delay or interfere with Acquiror's schedule or activities
in
12
exercising its rights of review and confirmation. The
provisions of this Section 3.1(b) shall survive the
termination of this transaction.
(c) Acquiror acknowledges (i) that Acquiror has
entered into this Agreement with the intention of making and
relying upon its own investigation of the physical,
environmental, economic and legal condition of the Property,
(ii) that, other than as specifically set forth in this
Agreement, Contributor or anyone acting or claiming to act
on behalf of Contributor, is not making and has not at any
time made any representation or warranty of any kind or
nature, either oral or written, directly or indirectly,
expressed, implied, statutory or otherwise, with respect to
the Property, including, without limitation, representations
or warranties as to habitability, merchantability, fitness
for a particular purpose, title (other than Contributor's
limited warranty of title set forth in the Deed), zoning,
tax consequences, latent or patent physical or environmental
condition, health or safety matters, utilities, operating
history or projections, valuation, projections, the
applicability of any laws, rules or regulations or
compliance therewith, or the truth, accuracy or completeness
of the Disclosure Materials, (iii) other than as
specifically set forth in this Agreement, Acquiror is not
relying upon and is not entitled to rely upon any
representations and/or warranties made by Contributor, (iv)
that the Disclosure Materials include certain soil,
environmental and physical reports prepared for Contributor
or Contributor's lenders by third parties as to which
reports Acquiror has no right of reliance except as
expressly provided in such reports, and Acquiror
acknowledges that Acquiror has conducted an independent
evaluation and Contributor or anyone acting or claiming to
act on behalf of Contributor, has made no representations or
warranties whatsoever as to accuracy, completeness or
adequacy of such reports and (v) that the Disclosure
Materials include certain economic projections that reflect
assumptions as to future market status and future Property
income and expense with respect to the Property which are
inherently uncertain and as to which Contributor or anyone
acting or claiming to act on behalf of Contributor, has not
made any representation, guaranty or warranty whatsoever.
Acquiror further acknowledges that Acquiror has not received
from Contributor any accounting, tax, legal, architectural,
engineering, property management or other advice with
respect to this transaction and that Acquiror is relying
solely upon the advice of its own accounting, tax, legal,
architectural, engineering, property management and other
advisors. Based upon Acquiror's familiarity with the
Property, Acquiror's due diligence relating to the Property
and Acquiror's experience and knowledge as to the market in
which the Property is situated and as to investment in and
operation of real estate in the nature of the Property and
commercial real estate in general, Acquiror shall purchase
the Property on the Closing Date in its "AS IS, WHERE IS AND
WITH ALL FAULTS" condition, without any representation or
warranty whatsoever except as expressly provided in this
Agreement, as aforesaid, and, except as expressly provided
in this Agreement, Acquiror fully assumes the risk that
adverse latent or patent physical, structural,
environmental, economic or legal conditions may not have
been revealed by Acquiror's investigations. Contributor and
Acquiror acknowledge that the Contribution Consideration to
be paid to Contributor for the Property has taken into
account that the
13
Property is being sold subject to the provisions of this
SECTION 3.1. Except as set forth in Section 5.5, nothing
in this SECTION 3.1 shall be deemed to impair, limit or
otherwise affect Acquiror's rights under this
Agreement in respect of the representations, warranties
and covenants of Contributor set forth in this Agreement and
the other express provisions hereof binding on Contributor,
and except as set forth in Section 5.5, nothing contained in
this SECTION 3.1 shall be deemed to constitute a waiver by
Acquiror of its rights at law or in equity, if any, to seek
contribution or other recourse against Contributor in the
event of a claim asserted against Acquiror by a third party
with respect to liabilities arising from or relating to a
breach of any express representations, warranties or
covenants by Contributor hereunder to the extent that such
representation, warranty or covenant has not been terminated
pursuant to SECTION 5.5(A). Contributor and Acquiror agree
that the provisions of this SECTION 3.1 shall survive the
Closing Date and the filing for record of the Deed.
(d) Without limiting the generality of the provisions
of this SECTION 3.1, except as expressly provided in this
Agreement, Contributor makes no representations or
warranties as to the presence or absence of any Hazardous
Materials in, on, under or about the Properties. Except as
expressly provided in SECTIONS 5.1(B)(XVIII) AND (XXII) of
this Agreement, Acquiror specifically waives any private
right of action provided, and agrees (for itself or anyone
deriving rights by or through Acquiror) not to sue or join
Contributor in any suit, claim or cause of action under
CERCLA, any other Environmental Laws and/or any principles
of common law relating to environmental matters to recover
or be reimbursed for any liabilities, costs, fees, or
expenses from the Contributor, Contributor Related Parties,
or any predecessors in interest; provided, however, that in
no circumstances will Acquiror protect, defend, hold
harmless, reimburse or indemnify Contributor or any
Contributor Related Party in any way from claims brought
against Contributor or any Contributor Related Party by any
third parties in connection with the presence of any
Hazardous Materials or any violation of Environmental Laws
and/or common law relating to environmental matters existing
prior to the Closing Date. The agreements set forth in this
Section 3.1(d) shall survive the Closing Date and the filing
for record of the Deed.
(e) Subject solely to Section 7.3 and the
representations set forth in SECTION 5.1, except as may be
limited as set forth in SECTION 5.5, effective as of the
Closing Date, Acquiror, for itself and its agents, partners,
members, shareholders, officers, directors, managers,
affiliates, successors and assigns, hereby releases and
forever discharges Contributor and the Contributor Related
Parties from any and all rights, claims, actions, causes of
action, demands and liabilities at law or in equity, whether
known or unknown at the time of this Agreement
(collectively, "Claims"), which Acquiror has or may have in
the future, arising out of or related to the physical,
structural, environmental, economic or legal condition of
the Property, including, without limitation, all claims in
tort or contract and any claim for indemnification or
contribution arising under CERCLA or any other Environmental
Laws or any other federal, state or local statute, rule or
ordinance now or at any time hereafter in effect relating to
liability of property owners or operators for environmental
matters, but excluding (i) claims and liabilities specified
in SECTION 5.2, subject to the limitations of Section 5.5,
(ii) obligations of Contributor
14
surviving Closing subject to the limitations in SECTION 5.5,
and (iii) claims arising as a result of gross negligence or
wilful wrongdoing on Contributor's part. Without limiting the
foregoing, on the Closing Date, Acquiror shall be deemed to have
waived, relinquished and released Contributor and all of the
Contributor Related Parties from any and all Claims and
other matters arising out of latent or patent defects or
physical conditions, violations of applicable laws and any
and all other acts, omissions, events, circumstances or
matters affecting the Property, subject, however, to
Acquiror's rights and remedies provided for in this
Agreement in the event of the breach of any of Contributor's
express warranties, representations or covenants contained
herein and subject to the next to last sentence of
SECTION 3.1(C) hereof.
Section 3.2 Material Adverse Matters.
(a) On or prior to the last day of the Confirmation
Period, Acquiror has delivered to Contributor the
Confirmation Letter, as attached as EXHIBIT C, confirming,
other than as specified in the Confirmation Letter,
Acquiror's satisfaction as to the absence of any Adverse
Matters Amount in excess of the Materiality Threshold
Amount. Acquiror's failure to deliver to Contributor, on or
prior to the last day of the Confirmation Period, an
executed Confirmation Letter shall be conclusively deemed as
Acquiror's confirmation of the absence of any Adverse
Matters Amount in excess of the Materiality Threshold
Amount. Other than for (i) breaches of Contributor's
representations, warranties and covenants as expressly set
forth in this Agreement that are discovered following the
close of the Confirmation Period, (ii) matters identified in
tenant or lender estoppel certificates which are
inconsistent with written disclosures or representations by
Contributor on or prior to the date hereof, or (iii) events
which occur following the Confirmation Period but prior to
Closing and which are not covered by insurance or
condemnation proceeds (which are governed by SECTION 8.1
hereof) (collectively, "Post Confirmation Period Material
Events"), Acquiror and Contributor shall have no rights or
obligations based upon, and Acquiror specifically waives any
rights or claims relating to, any Adverse Matters not
identified (in accordance with the terms of this Agreement)
in the Confirmation Letter for any reason whatsoever,
including, without limitation, (i) mandatory exclusion from
the Confirmation Letter because the Adverse Matters Amount
does not exceed the Materiality Threshold Amount, or
(ii) Acquiror's failure or inability for any reason (unless
such reason results from Contributor's deliberate and
malicious action or inaction) to identify such Adverse
Matters prior to the close of the Confirmation Period.
(b) If the Adverse Matters Amount exceeds the
Materiality Threshold Amount, the Confirmation Letter shall
set forth (i) the exact nature of any claimed Adverse
Matters that contributed to such excess and the manner in
which any such claimed Adverse Matters have an adverse
effect on the value of the Property and (ii) reasonably
detailed evidence of the existence of such Adverse Matters
and Acquiror's rationale for and calculation of the Adverse
Matters Amount.
(c) If the Adverse Matters Amount, as reflected in the
Confirmation Letter, is less than Termination Trigger Amount
but more than the Materiality Threshold Amount,
15
the Contribution Consideration shall be reduced by the excess
of (i) the Adverse Matters Amount over (ii) the Materiality
Threshold Amount as reduced by the excess, if any, of the
Materiality Threshold Amount in the Meridian Transaction
over the Adverse Matters Amount in the Meridian Transaction.
For example, if the Adverse Matters Amount for the Property
is $750,000 (i.e. $250,000 above the Materiality Threshold
Amount for the Property), and the Adverse Matters Amount in
the Meridian Transaction is $400,000 (i.e. $100,000 below
the Materiality Threshold Amount for the Meridian
Transaction), the Gross Contribution Consideration for the
Property shall be reduced by $150,000 instead of $250,000.
In such event both parties shall be obligated to Close this
transaction on the Closing Date in accordance with the terms
of this Agreement, but Contributor shall have the right to
arbitrate the Adverse Matters Amount pursuant to the
arbitration provisions set forth in SECTION 8.5 below. In
the event that the Meridian Transaction does not close prior
to or substantially contemporaneously with the Closing
hereunder, the calculation of the reduction in the
Contribution Consideration pursuant to this Section 3.2(c)
shall be made without regard to the Adverse Matters Amount
in the Meridian Transaction; provided, however, that
promptly following the closing of the Meridian Transaction,
such reduction in the Contribution Consideration shall be
recalculated to take account of the excess, if any, of the
Materiality Threshold Amount in the Meridian Transaction
over the Adverse Matters Amount in the Meridian Transaction,
whereupon Contributor or Acquiror, as the case may be, shall
pay, in accordance with the terms of Section 7.3(g), to the
other party an amount equal to the adjustment that should
have been made in the Contribution Consideration. The
provisions of this Section 3.2(c) shall survive the Closing.
(d) If the Adverse Matters Amount, as reflected in the
Confirmation Letter, is greater than the Termination Trigger
Amount, then Acquiror shall elect in the Confirmation Letter
either (i) to Close this transaction on the basis of a
reduction of the Contribution Consideration by the
difference between the Termination Trigger Amount and the
Materiality Threshold Amount (but without any reduction in
the Contribution Consideration for the excess over the
Termination Trigger Amount), or (ii) to terminate this
Agreement (the "Termination Notice"). Upon receipt by
Contributor of the Confirmation Letter with a Termination
Notice, Contributor shall elect, within five (5) Business
Days thereafter, one of the following: (A) to agree to the
termination of this Agreement, in which event the Deposit
shall be returned to Acquiror; (B) to agree to Close this
transaction on the basis of a reduction in the Contribution
Consideration in the full amount of the excess of the
Adverse Matters Amount over the Materiality Threshold
Amount, in which event both parties shall be obligated to
Close this transaction on the Closing Date in accordance
with the terms of this Agreement, or (C) to elect to pursue
arbitration pursuant to SECTION 8.5 below, in which event,
either Contributor shall be obligated to Close the
transaction (in accordance with clause (B) of this sentence
but using the arbitrator's determination of the Adverse
Matters Amount as the basis for reducing the Contribution
Consideration) if the arbitrator(s) agree(s) with
Contributor's position regarding the Adverse Matters Amount,
or Contributor shall be permitted to terminate this
Agreement if the arbitrator(s) agree(s) with Acquiror's
position regarding the Adverse Matters Amount,
16
or, in the alternative, to Close this transaction in accordance
with Clause (B) of this sentence. In the event that Acquiror
shall elect to Close this transaction pursuant to clause (i)
above, Contributor shall have the right to arbitrate the
Adverse Matters Amount pursuant to the arbitration
provisions set forth in SECTION 8.5, but notwithstanding the
outcome of said arbitration, Contributor shall be obligated
to Close this transaction, provided that the reduction in
the Contribution Consideration shall be the difference
between the lesser of the Termination Trigger Amount or the
Adverse Matters Amount determined by arbitration, on the one
hand, and, on the other hand, the Materiality Threshold
Amount. Notwithstanding anything to the contrary set forth
in this Agreement, if the Adverse Matters Amount exceeds ten
percent (10%) of the Contribution Consideration, Acquiror
may elect to terminate this Agreement without regard to
Contributor's willingness to reduce the Contribution
Consideration by an amount equal to the excess of the
Adverse Matters Amount over the Materiality Threshold
Amount, subject to Contributor's right to arbitrate the
Adverse Matters Amount pursuant to SECTION 8.5.
Notwithstanding anything herein to the contrary, the amount
of the reduction in the Gross Contribution Consideration
shall be reduced by the excess, if any, of the Materiality
Threshold Amount over the Adverse Matters Amount in the
Meridian Transaction.
(e) In the event that Contributor has elected to
pursue arbitration pursuant to clause (C) of SECTION 3.2(D)
hereof, the termination by Acquiror pursuant to clause (ii)
of such Section shall not be effective until the conclusion
of such arbitration. If such arbitration shall have
determined that the Adverse Matters Amount is greater than
the Termination Trigger Amount, this Agreement shall be
terminated unless Contributor elects, within five (5)
Business Days after receipt of notice of such determination
through arbitration to agree to Close this transaction on
the basis of a reduction in the Contribution Consideration
in the full amount of the excess of the Adverse Matters
Amount over the Materiality Threshold Amount by giving
written notice to Acquiror, in which event the Closing shall
occur on the second business day after Acquiror receives
such notice. In addition, if Contributor shall have elected
to pursue arbitration pursuant to clause (C) of SECTION
3.2(D), Contributor shall have the right to require that the
Closing occur on the Closing Date prior to the conclusion of
the arbitration, in which event the parties shall be
obligated to Close this transaction on the Closing Date and
the Contribution Consideration shall be reduced by the
excess of the Adverse Matters Amount over the Materiality
Threshold Amount as determined by such arbitration. Escrow
arrangements shall be made pursuant to the provisions of
SECTION 8.5(D) hereof.
(f) In the event that Post-Confirmation Period
Material Events (as defined in SECTION 3.2(A)) occur prior
to the Closing Date, Acquiror as its sole remedy shall be
entitled to recalculate the Adverse Matters Amount by adding
to the amount of Adverse Matters discovered during the
Confirmation Period the amount of any new Adverse Matters
created as a result of a Post Confirmation Period Material
Event and deliver a new Confirmation Notice to Contributor
prior to the scheduled Closing Date
17
setting forth the results of such recalculation and containing
the information required under SECTION 3.2(A). Thereupon, the
procedures set forth in SECTIONS 3.2(B), (C), (D) and (E) shall
be implemented, and the Closing Date shall be delayed a
sufficient period of time to permit such implementation.
(g) Notwithstanding anything in this Agreement to the
contrary, any matters identified by Acquiror prior to the
Closing Date that constitute breaches of representations,
warranties and covenants and also constitute Adverse Matters
shall be treated solely as Adverse Matters and shall not be
the subject of any claim for breach of representation,
warranty or covenant under ARTICLE V.
(h) Notwithstanding anything to the contrary set forth
above, Acquiror and Contributor agree that the following
categories of Adverse Matters ("Non-Curable Adverse
Matters"), if discovered or occurring with respect to the
Property at any time after the date hereof and prior to
Closing, are not readily quantifiable or are otherwise not
of a nature which Acquiror should be obligated to accept
even if Contributor were prepared to reduce the Net
Contribution Consideration: A release of Hazardous
Materials which is of such seriousness as to materially
adversely affect the viability of the Property as a shopping
center. Within three (3) Business Days following the
discovery or occurrence of a Non-Curable Adverse Matter,
Acquiror shall notify Contributor of the nature of the Non-
Curable Adverse Matter and that Acquiror elects (i) to
terminate this Agreement; (ii) to Close this transaction
without adjustment to the Net Contribution Consideration,
notwithstanding the existence of such Non-Curable Adverse
Matter, or (iii) to Close this transaction provided that
Contributor agrees to cure such Non-Curable Adverse Matter
in a manner reasonably satisfactory to Acquiror or to reduce
the Net Contribution Consideration by an amount reasonably
acceptable to Acquiror. In the event that Acquiror elects
item (iii) in the preceding sentence, Contributor shall
elect, by written notice to Acquiror, within five (5)
Business Days thereafter, either (x) to agree to cure the
Non-Curable Adverse Matter in a manner proposed in such
notice or to accept a reduction in the Net Contribution
Consideration by an amount proposed in such notice, or
(y) to terminate this Agreement. If Contributor elects to
terminate this Agreement, Acquiror shall have the right, by
written notice to Contributor within five (5) Business Days
thereafter, to proceed to Close the transaction without cure
or reduction, in which event Contributor shall be obligated
to Close the transaction. Notwithstanding anything to the
contrary set forth above, in the event the Contributor
disputes the existence of a Non-Curable Adverse Matter
alleged by Acquiror, Contributor shall be entitled to
arbitrate the matter pursuant to the provisions of
SECTION 8.5.
Section 3.3 Title Exceptions.
(a) Acquiror has secured and may continue to secure,
at Acquiror's expense, during the Confirmation Period any
additional title report or survey updates desired by
Acquiror. Any title exceptions or issues disclosed by title
or survey updates, disclosed
18
by Contributor to Acquiror or otherwise identified by Acquiror,
and which are not within the definition of Permitted Exceptions,
shall be referred to as "Additional Exceptions." Acquiror, in any
event, shall endeavor in good faith to cause the Title Company to
delete or insure over any Additional Exceptions prior to Acquiror's
expression of such matters in an Additional Exception Notice
(as hereinafter defined).
(b) Acquiror shall have the right to deliver a notice
to Contributor identifying any Additional Exceptions
("Additional Exception Notice") (i) on or prior to the
expiration of the Confirmation Period, and (ii) on or prior
to the Closing Date solely with respect to matters that (A)
are set forth in an update to the Title Report first
received by Acquiror after the expiration of the
Confirmation Period which materially and adversely affect
the Property or Acquiror's rights in the Property, or (B)
arise as a result of an act or omission of Contributor, its
partners, employees or agents and materially and adversely
affect the Property or Acquiror's rights in the Property.
Acquiror's failure to deliver any such notice in timely
fashion shall be deemed an approval of the applicable
Additional Exceptions disclosed to Acquiror in the Title
Report or any title or survey updates, or disclosed to
Acquiror by Contributor in writing or otherwise discovered
by Acquiror during the Confirmation Period. Except as set
forth above, Acquiror shall have no right to deliver an
Additional Exception Notice following the close of the
Confirmation Period. If Acquiror delivers an Additional
Exception Notice within such period, Acquiror and
Contributor shall promptly attempt to agree upon the method
or cost to cure or remove such Additional Exception or, if
not susceptible to cure or removal such Additional Exception
shall be deemed to be an Adverse Matter and shall be
resolved in accordance with the procedures set forth in
SECTION 3.2. Notwithstanding the foregoing, Acquiror shall
not have the right to object to any Additional Exception if
the Title Company is willing to affirmatively insure or
endorse over such Additional Exception at Contributor's
expense.
(c) "Permitted Exceptions" shall refer to (i) all
Leases listed on the Lease List; (ii) any and all exceptions
to title set forth in the Title Report attached as EXHIBIT P
or the Survey identified on Exhibit P, (iii) zoning
ordinances and regulations and other similar laws or
regulations governing use or enjoyment of the Property, (iv)
matters affecting title created by or with the written
consent of Acquiror, (v) liens to secure taxes and
assessments not yet due and payable, (vi) mortgages or deeds
of trust and related encumbrances securing the Assumed
Indebtedness, and (vii) any Additional Exceptions agreed to
or accepted by Acquiror in writing in accordance with the
terms of this Agreement. Notwithstanding the foregoing, on
the Closing Date, Contributor shall, at Contributor's sole
cost and expense, remove any liens of any mortgages or deeds
of trust securing indebtedness of Contributor (excluding
therefrom any mortgages or deeds of trust and related
encumbrances securing the Assumed Indebtedness and any
evidence of the KeyBank Loan and Wisconsin Power Loan),
liens for other monetary obligations that are not assumed by
Acquiror (for such purposes, all unpaid installments of
assessments not yet due and payable collected with
19
ad valorem real estate taxes shall be assumed by Acquiror,
subject to the prorations set forth in SECTION 7.3, and
represent Permitted Exceptions) and any title matters
created in violation of Contributor's covenant set forth in
SECTION 5.2(H), except for any Additional Exceptions agreed
to or accepted by Acquiror in writing in accordance with the
terms of this Agreement.
(d) Contributor shall have no obligation to execute
any affidavits or indemnifications in connection with the
issuance of the Title Policy (hereinafter defined in SECTION
4.1(A)), excepting only customary affidavits such as
regarding authority, the non-foreign status of Contributor,
the rights of tenants in possession and the status of
mechanics' liens in the form attached hereto as EXHIBIT Q.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4. l Conditions.
(a) Notwithstanding anything in this Agreement to the
contrary, Acquiror's obligation to purchase the Property
shall be subject to and contingent upon the satisfaction or
waiver of each of the following conditions precedent at or
prior to Closing:
(i) The written commitment, upon the sole
condition of the payment of any regularly scheduled
premium, of the Title Company to issue, with respect to
the Property, an American Land Title Association
Owner's Policy of Title Insurance in conformity with
the Title Report (the "Title Policy") insuring
Acquiror's fee simple title to the Real Property on the
Closing Date in an amount equal to the Gross
Contribution Consideration, subject only to the printed
conditions and exceptions of such policy, the Permitted
Exceptions and such Additional Exceptions as are agreed
to by Acquiror pursuant to SECTION 3.3(B) above,
together with such customary endorsements and
affirmative coverage as Acquiror shall reasonably
request; provided that Contributor shall bear no
additional expense as a result thereof;
(ii) Contributor's performance, observance or
tender of performance of all Closing obligations and
other material covenants and conditions required of
Contributor under this Agreement;
(iii) All representations and warranties of
Contributor set forth in SECTIONS 5.1(A) AND 5.1(C)
hereof shall be true and correct in all material
respects on and as of the Closing Date as if made on
and as of such date and Contributor shall have so
certified in writing (provided that nothing herein is
intended to abrogate Acquiror's right to terminate this
transaction pursuant to
20
SECTION 3.2 based upon breaches of the representations
and warranties set forth in SECTION 5.1(B));
(iv) Receipt by Acquiror no later than the
Closing Date of the following estoppel letters:
(A) Estoppel letters from Sears, JC
Penney, Boston's and Kohl's (collectively, the
"Majors") dated no earlier than sixty (60) days
prior to Closing in the form required under their
respective Leases (provided that Contributor shall
make reasonable efforts to obtain estoppel letters
on the form attached hereto as EXHIBIT R); and
(B) Estoppels dated no earlier than
sixty (60) days prior to Closing in the form
attached hereto as EXHIBIT R from all tenants
under Leases of Ten Thousand (10,000) square feet
or more of gross leasable area within the Property
and from not less than seventy-five (75%) of all
other tenants of the Property leasing less than
ten thousand (10,000) square feet computed by
reference to gross leasable area; and
(C) In addition to the foregoing
estoppels, a master estoppel in the form attached
hereto as EXHIBIT S (the "Master Estoppel") from
Contributor with respect to all Leases (other than
the Leases described in subparagraph (A) and
Leases of 10,000 square feet or more of gross
leasable area unless Acquiror has waived in
writing such conditions as to any such Lease) for
which estoppels have not been obtained and
delivered. For one (1) year after Closing,
Contributor shall use its reasonable good faith
efforts to obtain and deliver such tenant
estoppels. Any statements made by Contributor in
such master estoppel shall constitute warranties
and representations by Contributor which shall
survive the Closing until the earlier to occur of
(x) the first anniversary of the Closing Date, or
(y) the date on which any tenant supplies its own
estoppel, to the extent such tenant's estoppel
covers the items set forth in the Master Estoppel;
provided, however, that to the extent that any
tenant estoppel differs materially from the Master
Estoppel, Acquiror shall be permitted to treat
such material difference as a claim for breach of
a representation or warranty pursuant to Section
5.5(b); and provided, further, that,
notwithstanding anything in this Agreement to the
contrary, Acquiror shall have until the earlier of
(i) three (3) months after the receipt by Acquiror
of the tenant estoppel in question, or (ii) one
(1) year after Closing, to deliver a Claim Notice
to Contributor with respect to such breach; and
(D) The estoppel letter (or other
reasonable evidence) from the Assumed Indebtedness
Lender dated no earlier than thirty (30) days
21
prior to Closing, reflecting no material defaults
then existing under the Assumed Indebtedness and
confirming (A) the outstanding principal balance
thereof, (B) the interest rate, (C) the date
installments of interest and/or principal were
last paid, (D) consenting to the assumption of the
Assumed Indebtedness by Acquiror, and (E) listing
each of the Assumed Loan Documents and stating
that none of the Assumed Loan Documents have been
modified (or, if modified, that such modification
is set forth in the assumed Loan Documents).
Notwithstanding anything in this Agreement to the
contrary, if the foregoing condition (iv) has not been
satisfied or waived on or before the scheduled Closing
Date, Contributor shall have the right to extend the
Closing Date until the earlier of (x) sixty (60) days
following the scheduled Closing Date or (y) the date on
which such conditions are satisfied or waived.
(v) The execution and delivery by all OP Unit
Recipients of the Acknowledgment.
(vi) There having occurred no Non-Curable
Adverse Matters following the Contract Date; unless the
foregoing condition is waived by Acquiror pursuant to
the provisions of SECTION 3.2(H).
(vii) The following shall not have occurred:
(A) the bankruptcy of any Major; or
(B) the actual, or delivery of notice
of, closing of business of the store operated by
any of the Majors other than for repairs,
inventory, remodeling and similar matters which
are intended to be on a temporary basis;
(viii) There being no material litigation or
other proceeding pending against Contributor or the
Property that would have a material adverse effect on
the Property or Acquiror's use thereof as a shopping
centers; and
(ix) The execution and delivery by all parties
thereto of an amendment of the lease with Penney
relating, among other things, to the reduction of the
required parking ratio in certain circumstances to 4
per thousand in the form of EXHIBIT L.
(x) The execution and delivery of the consent
of the Assumed Indebtedness Lender in accordance with
the terms of 4.1(C) hereof.
22
(b) Notwithstanding anything in this Agreement to the
contrary, Contributor's obligation to sell the Property
shall be subject to and contingent upon the satisfaction or
waiver of the following conditions precedent at or prior to
Closing:
(i) Acquiror's performance or tender of
performance of all Closing obligations and other
material covenants and conditions required of Acquiror
under this Agreement; and
(ii) All representations and warranties of
Acquiror set forth in ARTICLE V hereof shall be true
and correct in all material respects on and as of the
Closing Date as if made on and as of such date and
Acquiror shall have so certified in writing.
(v) The execution and delivery by Acquiror of
the Acknowledgments.
(c) Acquiror acknowledges and agrees that the
Contributor must obtain the consent of the Assumed
Indebtedness Lender to the transfer of the Property to
Acquiror subject to the Assumed Loan Documents and to the
assumption by Acquiror of the Assumed Indebtedness. If,
despite the reasonable good faith efforts of Acquiror and
Contributor (as provided in SECTIONS 5.2(H) and 5.4(A)
hereof), the Assumed Indebtedness Lender fails to give its
consent to the transfer of the Property on terms and
conditions satisfactory to the Contributor and Acquiror,
each acting reasonably, by the close of the Confirmation
Period, then the Acquiror together with Contributor
shall continue to seek such Assumed Indebtedness Lender's
consent for an additional period of sixty (60) days after
the close of the Confirmation Period, in which case if such
consent is not obtained within ten (10) days after the end
of the Confirmation Period, the Closing Date will be
deferred to that date which is two (2) Business Days after
such Assumed Indebtedness Lender's consent is obtained. If
the parties are unable to obtain the Assumed Indebtedness
Lender's consent or, in the alternative, to arrange for
mutually agreeable replacement financing within the
additional period of sixty (60) days provided hereunder,
then this Agreement may be terminated by either party by
giving written notice to the other at any time prior to the
receipt of such consent, and, upon delivery of such notice
of termination, the Deposit will be returned to Acquiror and
the parties will thereafter be relieved of all further
liability hereunder, except the Surviving Covenants. For
purposes of this SECTION 4.1(C), it is agreed that the
consent by the Assumed Indebtedness Lender shall be deemed
acceptable only if the Assumed Indebtedness Lender approves
of the transaction contemplated herein, issues a clean
estoppel certificate and agrees to modify the Assumed Loan
Documents in order to provide, in substance, that
(i) the transfer of shares of the REIT or the
merger or consolidation of the REIT with or into any
other entity shall be permitted;
(ii) the transfer of operating partnership units
in Acquiror or the merger or consolidation of Acquiror
into or with any other entity, shall be permitted;
23
(iii) transfers of the Property to entities which
are, directly or indirectly, controlled and at least
50% owned by Acquiror, or its permitted successors,
shall be permitted without the payment of any transfer
fee;
(iv) one subsequent transfer of ownership of the
Property (whether or not to an entity that is permitted
under clause (iii)) shall be permitted provided the
transferee is approved and a 1% transfer fee is paid to
the Assumed Indebtedness Lender, as provided under
Section 3.5(1)(b) of the mortgage contained within the
Assumed Loan Documents;
(v) changes in the management of the Property
shall be permitted to entities that are affiliates of
Acquiror; and
(vi) the existing side letters, except the side
letter relating to outlot development, between
Contributor and the Assumed Indebtedness Lender shall
continue to be in effect and shall run to the benefit
of Acquiror.
Section 4.2 Failure or Waiver of Conditions Precedent.
If any of the conditions set forth in SECTION 4.1 are not
fulfilled or waived at or prior to Closing, then the party
benefitted by such condition may, by written notice to the other
party, terminate this Agreement, whereupon all rights and
obligations hereunder of each party shall cease and terminate and
be of no further force or effect except for the Surviving
Covenants, unless the other party is able to secure the
satisfaction of the noted condition within five (5) Business Days
of such termination notice, in which event this Agreement shall
not terminate. Notwithstanding the foregoing, the termination of
this Agreement pursuant to this SECTION 4.2 shall not be deemed
to waive any rights that a party may have pursuant to Article VI
of this Agreement. Either party may, at its election, at any
time or times at or before the Closing, waive in writing the
benefit of any of the conditions set forth in SECTION 4.1(A) and
SECTION 4.1(B). In any event, Acquiror's consent to the Close of
escrow pursuant to this Agreement shall waive any remaining
unfulfilled conditions except as otherwise specified by the
provisions in writing. If this Agreement is terminated by
Acquiror as a result of the failure of any condition set forth in
SECTION 4.1(A), the Title Company, as escrow agent, shall return
the full amount of the Deposit to Acquiror, together with any
interest accrued thereon.
Section 4.3 Either party shall have the right to
terminate this Agreement in the event that the Contribution,
Exchange and Sale Agreement of even date herewith concerning the
Meridian Property (the "Meridian Contract") is terminated as a
result of the "Potential Pipeline Spill" (as such term is defined
therein) by giving notice to the other party with two (2) days
after the termination of the Meridian Contract. In the event this
Agreement is terminated under this Section 4.3, the Deposit shall
be promptly returned to the Acquiror, together with interest
accrued thereon, in any, and neither party shall any further
rights in obligations hereunder. Notwithstanding anything to the
contrary contained herein, the Closing Date hereunder shall be
automatically extended until the date that is two (2) days after
each party's termination rights with respect to the Potential
Pipeline Spill shall have lapsed.
24
ARTICLE V
COVENANTS WARRANTIES AND REPRESENTATIONS
Section 5.1 Contributor's Warranties and
Representations. Contributor makes the following representations
and warranties to Acquiror, provided that Acquiror acknowledges
and agrees that each of such representations and warranties shall
be deemed expressly qualified by any information set forth on the
Disclosure Materials List and Statement or in the Disclosure
Materials set forth on the Disclosure Materials List & Statement.
(a) Contributor's Organizational Representations.
Contributor represents and warrants as follows:
(i) Contributor is a partnership organized,
validly existing and in good standing under the laws of
the State of Ohio and has qualified to do business in
the State of Wisconsin. Contributor has full power and
lawful authority to enter into and carry out the terms
and provisions of this Agreement and to execute and
deliver all documents which are contemplated by this
Agreement, and all actions of Contributor necessary to
confer such power and authority upon the persons
executing this Agreement (and all documents which are
contemplated by this Agreement) on behalf of
Contributor have been taken and this Agreement
constitutes a valid and legally binding obligation of
Contributor enforceable against Contributor in
accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, arrangement,
moratorium, fraudulent conveyance or other similar laws
affecting the rights of creditors generally and to
principles of equity.
(ii) Contributor's execution and delivery of
this Agreement, the consummation of the transactions
contemplated hereby and the performance of
Contributor's obligations under the instruments
required to be delivered by Contributor at the Closing,
do not and will not require the consent, approval or
other authorization of, or registration, declaration or
filing with, or payment of any premium, fee or penalty
to any Governmental Authority (excepting the
recordation of Closing documents to the extent
contemplated in this Agreement and any transfer taxes
payable in connection therewith) and do not and will
not result in the creation of or claim of any lien,
charge or encumbrance upon the Property or any portion
thereof or any violation of, or default under, any law,
regulation, rule, order or judgment of any Governmental
Authority or any term or provision of any agreement,
instrument, mortgage, loan agreement or similar
document to which Contributor is a party or by which
Contributor is bound; provided, however, that the
Contributor must obtain the consent of the Assumed
Indebtedness Lender to permit the transfer of the
Property to Acquiror and Acquiror's assumption of the
Assumed Indebtedness, which consent may be subject to
certain conditions imposed by the Assumed Indebtedness
Lender or otherwise set forth in the Assumed Loan
Documents.
25
(iii) There is no litigation, investigation or
proceeding pending or, to Contributor's knowledge,
contemplated or threatened against Contributor that, if
decided adversely to Contributor, would materially and
adversely affect the value of the Property or
Contributor's ability to perform Contributor's
obligations under this Agreement or any other
instrument or document related hereto.
(iv) Contributor is not a "foreign person" as
defined in SECTION L445(F)(3) of the Code.
(v) As of December 31, 1997, Contributor's
adjusted tax basis in the Property for federal income
tax purposes was approximately as set forth on
EXHIBIT U, and the scheduled tax depreciation, cost
recovery and amortization deductions for future years
are approximately as set forth on such Exhibit. Except
as noted on such Exhibit, adjusted tax basis and the
scheduled tax depreciation, cost recovery and
amortization deductions for future years for state
income tax purposes do not differ materially from the
federal amounts.
(vi) As of December 31, 1997, the "outside tax
basis" of each of the partners of Contributor, their
capital accounts and share of liabilities is
approximately as set forth on EXHIBIT V.
(b) Property Status. Contributor represents and
warrants with respect to the Property, except as otherwise
disclosed in the Disclosure Materials set forth on the
Disclosure Materials List and Statement (EXHIBIT D hereof):
(i) Attached hereto as EXHIBIT H is a Lease
List (Rent Roll) with respect to the Property which is
true, correct and complete.
(ii) The Lease List for the Property lists all
of the Leases affecting the Property. Contributor has
made true, correct and complete originals or copies of
all Leases in effect as of the date hereof available to
Acquiror for its review. To Contributor's knowledge
except as may be set forth on the Lease List, each
Lease identified on the Lease List is in full force and
effect and has not been modified, assumed or extended
except as specified, and, except as disclosed in the
Disclosure Materials List and Statement, no tenant is
in material default under any such Lease and
Contributor has not received written notice of any
material default by the landlord under any such Lease.
No tenant or other person or entity has an option to
purchase or right of first refusal with respect to the
sale of all or any part of the Property.
(iii) All leasing commissions in respect of the
current terms of the Leases currently in effect have
been or will be paid in full by Contributor, except as
provided on EXHIBIT W.
(iv) Except as set forth on EXHIBIT X,
Contributor has received no written notice within the
thirty-six (36) month period immediately preceding the
26
date hereof, from any tenant under any Lease which is
still outstanding and otherwise has no knowledge that
such tenant is entitled to any reduction in, refund of
or counterclaim or offset against, or is otherwise
disputing, any rents paid, payable or to become payable
by such tenant thereunder or any other sums due any
tenant pursuant to the terms of its Lease, or is
entitled to cancel or terminate its Lease or to be
released of any of its material obligations thereunder.
(v) To Contributor's knowledge, all work which
is required to be performed by the landlord under each
Lease has been performed to the Tenant's satisfaction
or as required to be performed by landlord pursuant to
such Lease, except for work not completed and listed on
EXHIBIT Y, and the parties shall bear responsibility
for the same as indicated on such Exhibit.
(vi) All amounts in respect of tenant cash
allowances, lease takeover payments or takeback payment
obligations and all other tenant cash inducements have
been paid or satisfied in full, except as set forth on
EXHIBIT Z, and the parties shall bear responsibility
for the same as indicated on such Exhibit.
(vii) All security deposits currently held
pursuant to the Leases are listed on EXHIBIT H hereto
(including all accrued interest thereon, which is
listed separately). All security deposits furnished to
the landlord under the Leases have been held and
applied in compliance with the applicable Leases.
(viii) Except for Penney, no person or entity
using or occupying space at the Property under any
Lease is an affiliate of Contributor, nor does
Contributor or any affiliate thereof have any interest
(other than owning securities of such affiliate which
is publicly traded) in any such person or entity.
(ix) There are no unexpired "free rent" periods
(or similar concessions) granted to any tenants under
any of the Leases, except as set forth on EXHIBIT H.
(x) Contributor has not received any notice
from a tenant within the thirty-six (36) month period
preceding the date of this Agreement that has not been
cured stating that a condition exists that would now
permit a Tenant to cancel or terminate such Lease (or
any portion thereof), to be released from liability
under such Lease or cease operating or reduce its
obligations under such Lease.
(xi) Contributor has made originals or copies of
all Contracts in effect as of the date hereof which
survive the Closing available to Acquiror for its
review, all of the documents comprising such Contracts
being identified in EXHIBIT AA hereto.
(xii) Except as set forth on EXHIBIT AA,
Contributor has not given or received any written
notice of default to or from any party to a Contract
which
27
survives the Closing which is still outstanding
and otherwise has no knowledge that Contributor or any
such party has defaulted in any material respects in
performing any of its material obligations under such
Contract.
(xiii) Except as set forth on EXHIBIT AA, no
cancellation or termination fee is payable in
connection with the early termination of any Contract
which survives the Closing.
(xiv) Contributor has no direct or indirect
ownership interest in any service provider or any fees
payable to such provider under any contract which will
remain in effect after the Closing.
(xv) There are no agreements with brokers or any
other persons or entities providing for the management
or leasing of the Property or with contractors
providing for construction within the Property which
will remain in effect following the Closing, except as
set forth on EXHIBIT AA or elsewhere in this Agreement.
(xvi) The copies of the Disclosure Materials
provided to Acquiror are, to Contributor's knowledge,
true, accurate and complete in all material respects.
(xvii) To Contributor's knowledge, within the
thirty-six (36) month period preceding the date of this
Agreement, Contributor has received no written notice
from any Governmental Authorities that eminent domain
proceedings for the condemnation of or any zoning, land
use or similar proceedings relating to the Property or
any part of the Property are pending and, to
Contributor's knowledge, no such proceedings are
threatened (in writing).
(xviii) To Contributor's knowledge, within the
thirty-six (36) month period preceding the date of this
Agreement, Contributor has received no written notice
of and has no knowledge of any threatened (in writing)
or pending litigation against Contributor, including
litigation pursuant to any Environmental Law, which, if
decided adversely to Contributor, would materially and
adversely affect the Property;
(xix) To Contributor's knowledge, within the
thirty-six (36) month period preceding the date of this
Agreement, Contributor has received no written notice
that has not been cured or corrected from any
Governmental Authority that the improvements
constituting the Property are presently in violation of
any applicable building codes;
(xx) To Contributor's knowledge, Contributor has
received no written notice from any Governmental
Authority that has not been cured or corrected that the
current use of the Property is in violation of any
applicable zoning, land use or other similar law
affecting the Property;
28
(xxi) To Contributor's knowledge, no Taxes or
Assessments are currently the subject of protest or
appeal.
(xxii) To Contributor's knowledge, Contributor
has not received any written notice within the thirty-
six (36) month period preceding the date of this
Agreement which has not been cured or corrected
(A) from any Governmental Authority of any failure by
Contributor to obtain any certificate, permit, license
or approval (including those required under
Environmental Law) with respect to the Property, or any
intended revocation, modification or cancellation of
any of the same or (B) any violation of any
restriction, condition, covenant or agreement contained
in any easement, restrictive covenant or any similar
instrument or agreement which constitutes a Permitted
Exception.
(xxiii) To Contributor's knowledge, there are no
Contracts with respect to the Property that are not
cancelable by the owner of the Property within thirty
(30) days after written notice from Contributor, except
as disclosed on EXHIBIT AA.
(xxiv) Contributor is the fee simple owner of
the Land and Improvements and has the full and sole
right, power and authority to sell, assign and convey
the Property pursuant to this Agreement. Contributor
has not leased, mortgaged, hypothecated, pledged or
assigned all or any portion of Contributor's estate,
right, title and interest in and to the Property to any
person, except for Permitted Exceptions and any
encumbrances to be removed by Contributor at or prior
to Closing.
(xxv) Except as set forth in the environmental
reports listed on EXHIBIT D included within the
Disclosure Materials, any reports or studies prepared
by or for Acquiror and any reports obtained by
Acquiror: (A) to Contributor's knowledge, within the
thirty-six (36) month period preceding the date of this
Agreement, Contributor has received no written notice
from any Governmental Authority which has not been
cured or corrected of the presence of any Hazardous
Materials presently deposited, stored, or otherwise
located on, under, in or about the Property, except for
Hazardous Materials used by Contributor or tenants of
the Property in the ordinary course of business or as
part of their inventory; and (B) to Contributor's
knowledge, there are no underground storage tanks on
the Property.
(xxvi) A schedule of the material items of
personal property owned by Contributor included in the
sale is attached hereto as EXHIBIT E, which Exhibit
separately identifies any leased personal property, the
leases for which are listed on EXHIBIT E-1 annexed
hereto.
(xxvii) Contributor is not a party to, or
otherwise bound by, any union or collective bargaining
agreement that would be binding on Acquiror after the
Closing.
29
(xxviii) There are no tax abatements or
exemptions affecting the Property and, within the
thirty-six (36) month period preceding the date of this
Agreement, to Contributor's knowledge, Contributor has
not received any written notice of any proposed public
improvement assessments.
(xxix) To Contributor's knowledge, there is no
real property other than the Property that comprises
the regional shopping center commonly known as
"Janesville Mall" located in the Janesville, Wisconsin
metropolitan area and Contributor does not own or lease
any property other than the Property that is used in
connection with the operation of the regional shopping
center commonly known as "Janesville Mall" located in
the Janesville, Wisconsin metropolitan area.
(xxx) True, complete and correct copies of the
financial statements identified on EXHIBIT D hereto
have previously been delivered to Acquiror and fairly
and accurately present the assets, liabilities,
financial position and condition, results or operations
and changes in financial positions of the subjects
thereof as of the dates thereof for the period referred
to therein.
(xxxi) To Contributor's knowledge, within the
thirty-six (36) month period preceding the date of this
Agreement, Contributor has received no notice of
outstanding unpaid obligations to pay the cost of
connection of any utility lines, pipes or other
equipment serving the Property.
(xxxii) (A) To Contributor's knowledge, within
the thirty-six (36) month period preceding the date of
this Agreement, Contributor has not received any notice
that development, site assessment or other similar fees
payable in connection with the Property have not been
paid, and (B) to Contributor's knowledge, no such fees
are payable after the date hereof with respect to the
Property as it exists on the date hereof.
(xxxiii) There are no reciprocal easement
agreements or similar agreements affecting the
Property, except as may be set forth in the Permitted
Exceptions.
(xxxiv) To Contributor's knowledge, within the
thirty-six (36) month period preceding the date of this
Agreement, Contributor has not received written notice
from a Governmental Authority that has not been cured
or corrected that the number of parking spaces at the
Property is required to be increased above the number
of parking spaces existing on the date hereof.
(xxxv) To Contributor's knowledge within the
thirty-six (36) month period proceeding the day of this
Agreement, Contributor has not received written notice
from any Board of Fire Underwriters of any defect or
inadequacy in connection with the Property or its
operation.
30
(xxxvi) Contributor is presently maintaining the
insurance policies and coverage set forth in the
insurance summary dated November 7, 1997 included in
the Disclosure Materials.
(xxxvii) In the thirty-six (36) month period
preceding the date hereof, to Contributor's knowledge,
Contributor has not received any written notice of any
proposed (but not yet implemented) increase in the real
estate taxes or assessed valuation of the Property.
As used herein, the terms "Contributor's knowledge"or words of
similar effect shall mean and be limited to, the current actual
knowledge of any of Robert T. Samuels, Roger E. Benjamin, Michael
Montlack or Arthur Weisman as being the persons having knowledge
of the Property; provided, however, that said individuals shall
not be deemed to have personally made any representations or
warranties and shall not have any personal liability therefor,
and, provided, further that except as expressly provided herein
no independent investigation or study shall have been performed
for purposes of such representations and warranties. Each such
individual's knowledge shall not include information or material
which may be in the possession of any employee or agent of
Contributor or of the named individuals, but of which the named
individuals are not actually aware. Contributor shall have no
liability for the breach of any representations or warranties
absent a judicial finding that the named individual(s) withheld
material information known to such individual from Acquiror with
respect to the subject matter of the representation or warranty
or falsified information delivered to and relied upon by Acquiror
and that such action amounted to a violation of a representation
or warranty expressly set forth in this Agreement. None of the
named individuals, shall bear personal responsibility for any
breach of such representation or warranty.
(c) Assumed Indebtedness. Contributor represents and
warrants the following:
(i) The Assumed Loan Documents are presently in
full force and effect and Contributor is not in
monetary default under any of the Assumed Loan
Documents and has received no written notice of any
non-monetary default under any of the Assumed Loan
Documents which has not been cured;
(ii) The Assumed Loan Documents identified on
EXHIBIT B are all of the loan documents evidencing,
securing or providing for the Assumed Indebtedness; and
(iii) Upon obtaining the written consent of
the Assumed Indebtedness Lender and compliance with all
requirements imposed by the Assumed Indebtedness Lender
or set forth in the Assumed Loan Documents, Contributor
shall have full power and authority and shall be
permitted to transfer the Property to Acquiror subject
to the Assumed Loan Documents and Acquiror shall be
permitted to assume the Assumed Indebtedness.
Section 5.2 Contributor's Covenants. Contributor
hereby covenants and agrees as follows:
31
(a) During the Contract Period, Contributor will
exercise reasonable and good faith efforts to operate and
maintain the Property in the ordinary course of business and
in a manner consistent with current practices and as may be
required by any Lease, Contract or applicable Legal
Requirement and the Assumed Loan Documents.
(b) During the Contract Period, Contributor will not
sell or otherwise dispose of any significant items of the
Personal Property unless replaced with an item of like
value, quality and utility.
(c) During the Contract Period, Contributor shall not
enter into or modify any Contracts relating to the operation
or maintenance of the Property, except for those entered
into in the ordinary course of business and which are
cancelable upon not more than thirty (30) days' prior notice
(with any cancellation fee being paid by Contributor) or
those otherwise approved by Acquiror, which approval shall
not be unreasonably withheld and shall be deemed given if
Acquiror should fail to approve or disapprove proposed
Contract matters in writing within five (5) Business Days
following Acquiror's receipt of Contributor's written
request. At Acquiror's written request, Contributor shall
deliver notice of termination on the Closing Date as to any
and all Contracts that Acquiror desires to terminate,
provided that such termination shall be effective following
any notice or waiting period for such termination described
in the Contract and that Contributor shall not be required
to bear any termination or cancellation fee or charge that
may be assessed under such Contract based upon an early
termination. The existing Management Agreement for the
Property shall be terminated as of the Closing Date and
Contributor shall pay all termination fees, if any, in
connection therewith.
(d) Contributor shall terminate, or cause to be to be
terminated, (such termination to be effective as of the
Closing) all employees of Contributor or the manager of the
Property who are employed in connection with the Property
and shall pay, or cause to be paid, when due all wages and
other sums payable in connection with any such terminations,
including, without limitation, any and all amounts due (i)
for severance pay, (ii) on account of accrued vacation,
(iii) under any applicable union agreement or pension plan
by reason of withdrawal thereunder or otherwise, and (iv)
under the Workers Adjustment and Retraining Notification Act
("WARN Act").
(e) Contributor agrees to defend, indemnify and hold
harmless Acquiror and its agents from and against any and
all losses, claims, obligations, liabilities, and expenses
(including, without limitation attorneys' fees and
disbursements) of every kind and description, contingent or
otherwise, arising out of (i) any claims under the Workers
Adjustment and Retraining Notification Act and/or the
Comprehensive Omnibus Budget Reconciliation Act ("COBRA");
(ii) any claims asserted at any time by any person that was
employed at the Property at any time prior to the Closing to
the extent such claims are based on acts or omissions which
occurred prior to Closing; and/or (iii) Contributor's
failure to comply with its obligations under SECTION 5.2(D)
immediately above.
(f) During the Contract Period, Contributor will not
execute or modify in any fashion any Leases (i) without
promptly notifying Acquiror of the proposed lease or
32
modification and providing Acquiror with copies of the
proposed lease or modification documents which shall be
subject to Acquiror's approval, which approval shall not be
unreasonably withheld and which shall be deemed given if
Acquiror should fail to approve or disapprove such proposed
lease or modification in writing within five (5) Business
Days following Acquiror's receipt of Contributor's written
request, (ii) as to any Lease termination, and (iii) as to
any Lease providing for or creating an obligation for
payment of any brokerage commission irrespective of when due
or providing for payment of any tenant improvement allowance
or other concession, or as to any lease (or modification of
a Lease) pertaining to premises in excess of 10,000 rentable
square feet, without Acquiror's prior consent, which consent
shall be deemed given as to the leases set forth in EXHIBITS
F, F-1 AND F-2 hereof (provided that the same are entered
into on substantially the terms set forth on such exhibits
and pursuant to documentation reasonably acceptable to
Acquiror (with the understanding that Acquiror shall grant
its consent to leases of a kind generally used by
Contributor with respect to the type of tenant in question),
and which otherwise shall not be unreasonably withheld and
shall be deemed given if Acquiror should fail to approve or
disapprove proposed lease matters in writing within five (5)
Business Days following Acquiror's receipt of Contributor's
written request.
(g) During the Contract Period, Contributor shall
comply in all material respects with the provisions of all
of the Leases and Contracts that survive the Closing.
(h) During the Contract Period, Contributor shall not
voluntarily create, consent to or acquiesce in the creation
of liens or exceptions to title other than the Permitted
Exceptions without Acquiror's prior written consent,
provided that Acquiror shall not unreasonably withhold or
delay consent to any proposed matters affecting title which
Contributor would execute in the ordinary course of business
and are beneficial to the Property and do not give rise to
any monetary or other material obligation extending beyond
the Closing Date.
(i) During the Contract Period, Contributor shall
maintain policies of property casualty insurance and rental
loss insurance (if any) for the Improvements with coverage,
terms, conditions and deductible amounts substantially
consistent with Contributor's property casualty insurance
policies currently in effect.
(j) Intentionally Deleted.
(k) During the Contract Period, Contributor shall pay
as and when the same become due and payable all payments to
be made by Contributor under the Assumed Loan Documents and
shall comply in all material respects with all other terms
and provisions of the Assumed Loan Documents and shall not
cause or permit a default by Contributor thereunder.
(l) Contributor shall use reasonable good faith
efforts to obtain from the Assumed Indebtedness Lender
consent to the transfer of the Property to Acquiror subject
to the Assumed Loan Documents and to Acquiror's assumption
of the Assumed Indebtedness. Contributor shall pay one-half
(1/2) of the Assumed Indebtedness Lender's
33
transfer/assumption fees, and other costs of the Assumed
Indebtedness Lender pertaining thereto, if any.
(m) During the Contract Period, Contributor shall not,
without the prior written consent of Acquiror, in Acquiror's
sole discretion, amend or modify any of the Assumed Loan
Documents or prepay the Assumed Indebtedness in whole or in
part.
(n) During the Contract Period, Contributor shall not
initiate or settle any proceeding with respect to the
reduction of any Taxes.
(o) During the Contract Period, Contributor will
notify Acquiror of any of the following matters: (i)
notices of default given or received by Contributor with
respect to any Lease, Contract surviving Closing, or Assumed
Loan Document, (ii) litigation commenced by Contributor, or
litigation for which Contributor has received written notice
commenced or threatened in writing against Contributor, with
respect to the Property, (iii) notices received by
Contributor of condemnation proceedings commenced or
directed against all or any portion of the Property,
(iv) casualty losses to all or any portion of the Property,
and (v) notice of any Violation received by Contributor.
(p) Except to the extent arising from the acts or
omissions of Acquiror, its agents, employees or contractors,
Contributor agrees to defend, indemnify and hold harmless
Acquiror and its agents from and against any and all losses,
claims, obligations, liabilities and expenses arising out of
any tort claims (other than environmental claims) asserted
against Acquiror or its agents arising out of events or
occurrences prior to the Closing Date; provided that the
foregoing indemnity shall not include attorneys fees
incurred by Acquiror or its agents in connection with
defending Acquiror or its agents with respect to such tort
claims.
(q) Contributor agrees to defend, indemnify and hold
harmless Acquiror and its agents from and against any and
all losses, claims, obligations, liabilities and expenses
arising out of (i) any material breaches of the Assumed Loan
Documents if the Assumed Indebtedness Lender asserts a claim
of default in writing arising prior to the Closing Date
other than a claim relating to the physical condition of the
Property (ii) any breaches prior to the Closing Date of any
of the documents relating to the Wisconsin Power Loan or the
KeyBank Loan or (iii) any breaches, at any time, of any
obligations with respect to the KeyBank Loan other than the
payment of the principal of and accrued interest on the
KeyBank Loan. Acquiror shall notify Contributor of any
alleged material breaches within thirty (30) days after it
has knowledge of such claimed breach.
Section 5.3 Acquiror's Warranties and Representations.
Acquiror represents and warrants to Contributor that the
following are true as of the date of this Agreement:
(a) Acquiror is a duly formed and validly existing
limited partnership under the laws of the State of Delaware
and is in good standing under the laws of said State.
Acquiror has the full right, authority and power to enter
into this Agreement, to consummate the transactions
contemplated herein and to perform Acquiror's obligations
34
hereunder and under those documents and instruments to be
executed by Acquiror on the Closing Date, and each of the
individuals executing this Agreement on behalf of Acquiror
is authorized to do so, and this Agreement constitutes a
valid and legally binding obligation of Acquiror enforceable
against Acquiror in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization,
arrangement, moratorium, fraudulent conveyance or other
similar laws affecting the rights of creditors generally and
to principles of equity.
(b) Acquiror's execution and delivery of this
Agreement, the consummation of the transactions contemplated
hereby and the performance of Acquiror's obligations under
the instruments required to be delivered by Acquiror on the
Closing Date, do not and will not result in any violation
of, or default under, any term or provision of any
agreement, instrument, mortgage, loan agreement or similar
document to which Acquiror is a party or by which Acquiror
is bound.
(c) There is no litigation, investigation or
proceeding pending or, to the best of Acquiror's knowledge,
contemplated or threatened in writing against Acquiror that
would materially impair or materially adversely affect
Acquiror's ability to perform its obligations under this
Agreement or any other instrument or document related
hereto.
(d) Acquiror and, as applicable, its agents, have
complied fully with all terms and conditions of the
Confidentiality Agreement and have not communicated with any
tenant of the Property or any officers, managers, employees,
lawyers, accountants, consultants or agents of any such
tenant, in each case without prior consent of Contributor,
except to the extent permitted in the Confidentiality
Agreement.
(e) Acquiror's taxpayer identification number is 62-
1542285.
(f) The Acquiror and each of the existing Subsidiary
Partnerships qualifies as a partnership for federal income
tax purposes and is not treated as an association taxable as
a corporation under Section 7701 or Section 7704 of the Code
or any other provision.
(g) Neither the Acquiror nor any of the Subsidiary
Partnerships has any plan or intention to sell or dispose of
the Property or any substituted basis property (within the
meaning of Section 7701(a)(42) of the Code) with respect
thereto for a period of twelve (12) years other than in a
nonrecognition transaction in which no gain or loss is
recognized (as described in Treasury Regulation Section
1.704-3(a)(8)).
(h) Neither the Acquiror nor any of the Subsidiary
Partnerships has a plan or intention to refinance, repay
prior to the term, or otherwise accelerate the payment of
the principal balance of any Assumed Indebtedness.
(i) (i) The execution of this Agreement and
associated documents and the transactions contemplated
herein do not conflict with the REIT's organizational
documents or any shareholder or voting trust agreements
applicable to the REIT; (ii) the execution of this Agreement
and the associated documents and the transactions
35
contemplated herein do not conflict with any documents
applicable to Acquiror or any partnership interests in
Acquiror; (iii) Acquiror is duly authorized to issue the OP
Units; (iv) no consents or approvals are necessary to issue
the OP Units or for the REIT to be bound by the Registration
Rights Agreement (except for such consents or approvals as
shall have been obtained); (v) upon issuance of the OP
Units, the OP Units will be validly issued, fully paid and,
except as provided by law, non-assessable and the OP Units
are free of liens (except for liens created by the acts of
Contributor or any OP Unit Recipient); (vi) there are no
preemptive or similar rights, options, warrants or
convertible or exchangeable securities (or instruments
exchangeable or convertible into any of the foregoing) or
puts, calls, commitments or agreements or arrangements or
undertakings of any kind to which the Acquiror or the REIT
is bound; (vii) no bankruptcy or reorganization filings have
been made by or are contemplated by or, to Acquiror's
knowledge, against Acquiror or the REIT; and (viii) the
Informational Materials for the Acquiror and the REIT do not
contain any untrue statement of material fact or omit any
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
in which they were made, not misleading.
(k) The REIT is a real estate investment trust within
the meaning of Section 856(a) of the Code.
(l) The REIT has no plan or intention to assume or
guarantee, or to allow any other partner (other than the
Contributor or the OP Unit Recipients) to assume or
guarantee, any debt to which the Property is subject.
(m) The REIT is a duly formed and validly existing
corporation under the laws of the State of Delaware and is
in good standing under the laws of the State. The REIT has
full right, power, and authority to join in this Agreement
for the purposes set forth herein and each of the
individuals executing this Agreement on behalf of the REIT
is authorized to do so.
(n) Acquiror has validly made an election under
Section 754 of the Code.
As used herein, the terms "Acquiror's knowledge" or
words of similar effect shall mean, and be limited to, the
current actual knowledge of Charles B. Lebovitz, Stephen
Lebovitz, John Foy, Keith Honnold, H. Jay Wiseman, Jr., or Mary
Ann Sinnott as being the persons having knowledge of the subject
matter, provided, however, that said individuals shall not be
deemed to have personally made representations or warranties and
shall not have any personal liability therefor. Each such
individual's knowledge shall not include information or material
which may be in the possession of Acquiror, but of which the
named individuals are not actually aware. Acquiror shall have no
liability for the breach of any representations or warranties
absent any arbitrated or judicial finding that the named
individual(s) failed to disclose material information known to
such individual to Contributor with respect to the subject matter
of the representations or warranty or falsified information
delivered to and relied upon by Contributor and that such action
amounted to a violation of representation or warranty expressly
set forth in this Agreement. None of the individuals identified
above shall bear personal responsibility for any breach of such
representation or warranty.
36
Section 5.4 Acquiror's Covenants. Acquiror hereby
covenants and agrees as follows, all of which covenants (except
SECTION 5.4(A)) shall survive the Closing of the transaction
contemplated by this Agreement and the filing of the Deed for
record:
(a) Acquiror hereby covenants and agrees to use
reasonable good faith efforts to cooperate with Contributor
in obtaining the consent of the Assumed Indebtedness Lender
to the transfer of the Property to Acquiror subject to the
Assumed Loan Documents and Acquiror's assumption of the
Assumed Indebtedness. The aforesaid cooperation shall
include, without limitation, Acquiror's prompt delivery of
information, documents, financial statements and the like
reasonably requested by the Assumed Indebtedness Lender and
Acquiror's compliance with any conditions or requirements
reasonably imposed or requested by the Assumed Indebtedness
Lender in connection with such Assumed Indebtedness Lender's
consent. Acquiror shall pay one-half (1/2) of the Assumed
Indebtedness Lender's transfer/assumption fees, and other
costs of the Assumed Indebtedness Lender pertaining thereto,
if any.
(b) As to obligations which arise and accrue from and
after the Closing Date with respect to which Contributor or
any of the general partners of Contributor may be liable,
but for this assumption, Acquiror shall (i) pay as and when
the same become due and payable, all payments to be made
under the Assumed Loan Documents, (ii) comply in all
respects with all terms and provisions of the Assumed Loan
Documents, and (iii) not cause or permit a default under any
of the Assumed Loan Documents. Without limiting the
foregoing, Acquiror shall take no action that could result
in, and shall not fail to take any action that could prevent
or avoid, any liability, damage, loss, cost or expense to
the Contributor or the Contributor Related Parties, or the
assertion of any claims, demands or causes of action against
the Contributor or the Contributor Related Parties, under
the Assumed Loan Documents or with respect to the Assumed
Indebtedness.
(c) Acquiror shall indemnify, protect, defend and hold
the Contributor and the Contributor Related Parties harmless
from and against, any and all claims, demands, losses,
damages, liabilities, causes of action, liens, costs and
expenses (excluding punitive and consequential damages)
including, without limitation, reasonable attorneys' fees
and costs (to the extent permitted by law), directly or
indirectly related to, arising out of or in any manner
connected with (i) the Property and/or the Assumed
Indebtedness to the extent that the same directly or
indirectly relates to, arises out of, or is in any manner
connected with any incidents or occurrences occurring from
and after the Closing Date, and/or (ii) any breaches of
Acquiror's obligations under this Agreement or in any
instrument, document or agreement executed or delivered by
Acquiror in connection with the transaction contemplated by
this Agreement, including, without limitation, Acquiror's
assumption of the Assumed Indebtedness.
(d) For a period of twelve (12) years following the
Closing Date, the Acquiror will at all times qualify, and
cause each Subsidiary Partnership to qualify, as a
partnership
37
for federal income tax purposes and not as an
association taxable as a corporation under Section 7701 or
Section 7704 of the Code or any other provision of the Code.
(e) Except to the extent permitted in SECTION 5.4(J),
the Acquiror shall not, and shall not permit the Subsidiary
Partnerships to, sell, transfer or otherwise dispose of the
Property or any substituted basis property (within the
meaning of Section 7701(a)(42) of the Code) with respect
thereto for a period of twelve (12) years following the
Closing Date other than in a nonrecognition transaction in
which no gain or loss is recognized (as described in
Treasury Regulation Section 1.704-3(a)(8)) (a
"Nonrecognition Transaction").
(f) The Acquiror will allocate items of income, gain,
loss and deduction with respect to the Property using the
traditional method described in Treasury Regulation Section
1.704-3(b).
(g) Except to the extent permitted in SECTION 5.4(J),
the Acquiror shall not, and shall not permit the Subsidiary
Partnerships, within the period of twelve (12) years
following the Closing Date, to reduce the aggregate
principal balance (other than through scheduled periodic
amortization of principal or as required by law) of
Acquiror's "nonrecourse liabilities" (as defined in Treasury
Regulation Section 1.752-1(a)(1)or(2)) allocable in the
aggregate to the Contributor and the Contributor Related
Parties pursuant to Treasury Regulation Sections 1.752-
3(a)(1)or(2), as in effect as of the date hereof, below the
amount so allocable immediately following Closing.
(h) Acquiror shall notify the Contributor and each
Contributor Related Party not less than sixty (60) days (or,
if Acquiror itself has less than sixty (60) days prior
notice, as promptly as practicable) prior to any event that
would result in a taxable distribution (or deemed
distribution) of cash in excess of the tax basis in the OP
Units held by the Contributor or any Contributor Related
Party. To the extent that it is affected by an event
described in the preceding sentence, the Contributor or any
Contributor Related Party (an "Affected Party") may inform
the Acquiror of any action it desires to take in order to
increase its "economic risk of loss" within the meaning of
Treasury Regulation Section 1.752-2 (each such action, an
"Incurrence") with respect to the liabilities of Acquiror or
any Subsidiary Partnership. Unless advised by counsel that
no reasonable basis exists for treating the proposed
Incurrences in the manner intended by the Affected Parties
(in which event, Acquiror shall promptly so inform the
Affected Parties), Acquiror shall cooperate in a
commercially reasonable manner with the Affected Parties in
structuring the liabilities of Acquiror and the Subsidiary
Partnerships, and the guarantees thereof, to facilitate the
Incurrences in a manner that results in the least amount of
real economic risk being borne by each Affected Party,
provided, however, that Acquiror shall not be required to
incur any material expense or liability (other than an
expense or liability as to which the Affected Parties agree
to reimburse and indemnify Acquiror); and provided further
that in structuring any such arrangements, Acquiror shall
not be required to take or permit any action that would
materially adversely affect other holders of Common Units.
Acquiror shall be permitted to offer its other partners the
opportunity to enter into arrangements substantially
equivalent to the Incurrences at the time the
38
Incurrences are structured. Acquiror shall allocate to each
Affected Party for federal and state income tax purposes an
additional amount of its liabilities equal to the amount of
any Incurrence and shall take no position inconsistent
therewith, unless advised by counsel that as a result of a
material change in circumstances (beyond the control of
Acquiror) or law occurring after implementation of the
Incurrence, no reasonable basis exists for such an
allocation. Notwithstanding the other provisions of this
subsection 5.5(h), if, in connection with notices given to
the Affected Parties under this subsection 5.5(h), the
aggregate of the additional liabilities to be allocated to
the Affected Parties as a result of the Incurrences (as
determined immediately after such Incurrences) does not
exceed the amount of the taxable distributions described in
such notices by at least the Materiality Threshold Amount,
Acquiror shall not be required to give subsequent notices
under this subsection 5.5(h) unless the aggregate taxable
distributions that would be described in such subsequent
notices would equal or exceed the Materiality Threshold
Amount.
(i) Acquiror shall treat the transfer of the Property
pursuant to this Agreement for purposes of all federal
income tax returns, reports and other filings, as a tax-free
contribution of property to the Acquiror by the Contributor
that is governed by the provisions of Section 721 of the
Code (except to the extent resulting from the application of
Section 7.4(b) hereof), and shall take no position
inconsistent therewith. Acquiror shall similarly treat the
transfer of the Property pursuant to this Agreement for all
state and local tax purposes.
(j) Notwithstanding SECTIONS 5.4(E) and 5.4(G), the
Acquiror may, and may permit the Subsidiary Partnerships,
within the period of (12) twelve years following the Closing
Date, to (i) sell, transfer or otherwise dispose of the
Property or any substituted basis property in a transaction
that is not a Nonrecognition Transaction (a "Taxable
Transaction") or (ii) reduce the aggregate principal balance
of Acquiror's "nonrecourse liabilities" (as defined in
Treasury Regulation Section 1.752-1(a)(2)) allocable, in the
aggregate, to the Contributor and the Contributor Related
Parties pursuant to Treasury Regulation Sections 1.752-
3(a)(1) and (2), as in effect as of the date hereof, below
the amount allocable immediately following Closing,
provided, however, that in any case described in (i) or (ii)
above, Acquiror shall pay, indemnify and hold harmless each
of the Contributor and the Contributor Related Parties
against their respective Tax Costs, within the meaning of
SECTION 5.4(K), and provided, further, that prior to the
occurrence of any event described in clauses (i) or (ii) of
this SECTION 5.4(J), the Acquiror shall first establish a
security arrangement to the reasonable satisfaction of
eighty percent (80%) of the OP Unit Recipients as measured
on the basis of their respective percentage interests in the
Acquiror at such time. Provided that Acquiror satisfies all
of its obligations in this Section 5.4(j), then
notwithstanding anything to the contrary in this Agreement
(including, without limitation, under Section 5.5(e)), the
Contributor's and the Contributor Related Parties' sole and
exclusive remedy with respect to Acquiror's obligations
under SECTIONS 5.4(E) AND (G) shall be as provided in the
preceding sentence.
(k) For purposes of SECTION 5.4(J), the Tax Cost of
the Contributor and each Contributor Related Party shall
mean the sum of, (i) in the case of (A) a Taxable
Transaction described in SECTION 5.4(J)(I), any liability
for taxes arising in connection with
39
such Taxable Transaction and as a direct or indirect result of
the operation of Section 704(c) of the Code and the Treasury
Regulations promulgated thereunder (or any comparable state
or local provisions), or (B) an event described in SECTION
5.4(G), any liability for federal, state or local taxes
arising as a direct or indirect result of such event,
(ii) any costs and expenses including, without limitation,
interest, penalties, reasonable attorneys' and accountants
fees, and any other costs directly or indirectly related to,
arising out of or in any manner connected with the payments
described in this sentence, and (iii) any additional
liability for taxes associated with the receipt of any
payments of amounts described in clauses (i), (ii) and (iii)
of this SECTION 5.4(K). In determining such Tax Cost in the
case of any Contributor Related Party that holds its
interest in Acquiror through one or more related entities
treated as partnerships for federal income tax purposes and
in making the determination set forth in the last proviso of
Section 5.4(l) hereof, it shall be assumed that all such
entities had in effect a valid election under Section 754 of
the Code for all periods during which such Contributor
Related Party held its interest in Acquiror. Prior to
engaging in a transaction described in Section 5.4(j),
Acquiror may require any or all of the Contributor Related
Parties to reasonably cooperate with it in estimating the
Tax Cost of such transaction within 60 days of such request,
provided, however, that Acquiror shall reimburse and
indemnify such Contributor Related Parties for any costs
incurred in connection with such request.
(l) Notwithstanding any other provision of this
Agreement to the contrary, the Acquiror's covenants and
obligations contained in SECTIONS 5.4(F), (H), (I), (J) AND
(K) and SECTION 8.3 shall not terminate prior to the
expiration of the applicable statute of limitations for the
assessment or imposition of any tax upon the Contributor or
a Contributor Related Party, as the case may be, for any tax
liability directly or indirectly related to, arising out of
or in any manner connected with a breach of any such
covenant or obligation; provided, further, however, that the
twelve (12) year period set forth in SECTION 5.4(E) AND (G)
hereof shall terminate with respect to the Contributor or a
Contributor Related Party if there has been a Basis Step-Up
Transaction with respect to all of such party's OP Units.
For this purpose, a Basis Step-Up Transaction with respect
to an OP Unit shall mean a taxable sale or other taxable
disposition of an OP Unit, the death of an individual
Contributor Related Party or, in the case in which a
Contributor Related Party holds its interest in the OP Unit
through one or more entities treated as partnerships for
federal income tax purposes, a taxable sale or other
disposition of such Contributor Related Party's interest in
the entity; provided, however, in each case, that such
Basis Step-Up Transaction results in a full step-up of the
basis of such OP Unit for federal income tax purposes to its
then fair market value, and provided further that a
termination of the twelve year period as described in this
Section 5.4(l) shall be without prejudice to any rights of
Contributor or a Contributor Related Party in respect of any
breach, occurring prior to the time of such termination, by
Acquiror or a Subsidiary Partnership, of any obligation
hereunder.
(m) Acquiror consents in advance to the admittance of
the OP Unit Recipients as limited partners of Acquiror.
40
(n) All OP Units shall be transferable in accordance
with the terms of the Partnership Agreement and this
Agreement.
(o) Acquiror agrees that it shall cause the REIT to
reserve a sufficient quantity of authorized Stock at all
times to accommodate the immediate exchange of OP Units for
Stock or Acquiror shall pay in cash the market value of the
Stock for which the OP Units would have been exchanged.
(p) Acquiror shall not exercise any rights of an
attorney-in-fact (if any) granted under the Partnership
Agreement with respect to OP Units held by Realty or its
affiliates; provided, however, that Realty agrees not to
unreasonably withhold or delay its consent to such action by
the Acquiror, and provided further that the foregoing shall
not be deemed to grant any right of consent or approval to
Realty other than such rights which are granted to all
limited partners under the Partnership Agreement.
(q) Acquiror shall cause the amounts of its excess
nonrecourse liabilities (as defined in Treasury Regulations
Section 1.752-3(a)(3)) properly allocable to the Contributor
and the Contributor Related Parties as of the Closing Date
to be not less than the amounts set forth on Exhibit BB.
(r) Acquiror shall indemnify, defend and hold harmless
the Contributor and the Contributor Related Parties from and
against any and all claims, demands, losses, damages,
liabilities, obligations, causes of action, liens,
judgments, assessments, costs and expenses, including,
without limitation, reasonable attorneys' fees and costs (to
the extent permitted by law) directly or indirectly related
to, arising out of or in any manner connected with (i) the
Wisconsin Power Loan or (ii) the repayment of the principal
and accrued interest under the KeyBank Loan, in either case,
from and after the Closing Date.
Section 5.5 Survival/Limitations/Joinder.
(a) Subject to subsection (b) below, the parties agree
that except for the Surviving Covenants, Contributor's
representations, warranties and covenants contained in this
Agreement and in any document executed by Contributor
pursuant to this Agreement shall terminate on the Closing
Date, except that (i) those representations and warranties
contained in SECTIONS 5.1(A)(I), (II) AND (III), 5.2(P)
5.1(B) (III), (VIII), (XI), (XII), (XIII), (XIV), (XV),
(XVII), (XVIII), (XIX), (XX), (XXII), (XXIII), CLAUSE (A) OF
(XXV), (XXVI), (XXVII), (XXIX), (XXX), (XXXI), CLAUSE (A)
OF (XXXII), (XXXIV), (XXXV) AND (XXXVII), 5.1(C), 6.2, 7.3
AND 7.4 shall terminate on the first anniversary of the
Closing Date, (ii) those representations, warranties and
covenants contained in Sections 5.2(d) and 5.2 (e) shall
terminate eighteen (18) months after the Closing Date, (iii)
those representations, warranties and covenants contained in
SECTIONS 5.1(A) (EXCEPT AS SET FORTH ABOVE), 5.2(Q), 7.5 AND
8.2 shall terminate on the sixth anniversary of the Closing
Date. Any such termination shall apply to known as well as
unknown breaches of such representations, warranties or
covenants. Subject to subsection (b) below, Acquiror's
waiver and release set forth in SECTION 3.1 shall apply
fully to liabilities under such representations, warranties
41
and covenants. Acquiror specifically acknowledges and
agrees that such termination of liability represents a
material element of the consideration to Contributor.
(b) Any claim of Acquiror based upon a breach of any
representation or warranty of Contributor or upon a breach
of any of the covenants of Contributor shall be expressed,
if at all, in writing delivered to Contributor promptly
following Acquiror's discovery of such breach, which writing
shall set forth in reasonable detail the basis and character
of the claim ("Claim Notice"). Notwithstanding the
foregoing, subject to SECTION 6.2, (i) Acquiror shall not
make any claim on account of a breach of representations,
warranties or covenants discovered after the Closing Date
unless and until (A) the aggregate measure of such claims
exceeds One Hundred Eighteen Thousand Five Hundred Fifty
Dollars ($118,550.00), and (B) the aggregate measure of such
Claims with respect to the Meridian Transaction and this
transaction exceeds Five Hundred Thousand Dollars
($500,000.00), (ii) Contributor's aggregate liability for
all claims arising out of such representations, warranties
or covenants discovered after the Closing Date shall not
exceed Seven Hundred Eleven Thousand Three Hundred Dollars
($711,300), (iii) all claims for breach of representations,
warranties or covenants discovered prior to the Closing Date
shall be governed by the procedures set forth in Section 3.2
rather than this Section 5.5, and (iv) Acquiror shall not
have the right to deliver to Contributor Claim Notices with
respect to any breach of representation, warranty or
covenants after the expiration of any survival of the
representation, warranty or covenant in question.
(c) Contributor shall have a period of thirty (30)
days within which to cure any breach identified in a Claim
Notice, or, if such breach cannot reasonably be cured within
such thirty (30) days, an additional reasonable time period,
so long as such cure has been commenced within such thirty
(30) days and is at all times diligently pursued; provided,
however, that such additional reasonable period shall not
extend beyond sixty (60) days if Acquiror is incurring
damages as a result of Contributor's failure to cure such
breach. If the breach is not cured after actual written
notice and within such cure period, Acquiror's sole remedy
shall be an action at law for damages against the
Contributor, which must be commenced, if at all, within a
period of forty-five (45) days following the date of
delivery of the Claim Notice; provided, however, that if
Contributor commences to cure and thereafter terminates such
cure effort without completing such cure, then Acquiror
shall have an additional thirty (30) days from the date of
written notice from Contributor of such termination within
which to commence an action at law for damages as a
consequence of the failure to cure.
(d) The parties agree that Acquiror's representations
and warranties contained in SECTION 5.3 and any
representation made in accordance with SECTION 8.3 of this
Agreement and the covenants set forth in SECTION 5.4 of this
Agreement and in any document executed by Acquiror pursuant
to this Agreement shall survive the Closing of this
transaction and the recording of the Deed.
(e) Acquiror and the REIT agree that, except as
otherwise provided in this Agreement, in the event of the
breach of any representation or warranty contained in
SECTION 5.3 and any representation made in accordance with
SECTION 8.3 of this
42
Agreement and in any document executed by Acquiror
pursuant to this Agreement and any covenant set forth
in SECTION 5.4 which survives the Closing, Contributor
and/or any of the OP Unit Recipients shall have all remedies
available at law or in equity with respect to such breach,
including, without limitation, the right to injunctive
relief to prevent any such breach. Any provision of this
Agreement to the contrary notwithstanding, in no event or
circumstance whatsoever shall liability by asserted or
recourse be had against any partner of Acquiror, the REIT,
or its officers, directors, shareholders, employees or
agents, as to any claim arising directly or indirectly, in
full or in part, pursuant to this Agreement; provided,
however, that the foregoing shall not preclude any claim
against the Acquiror, even if such claim is based upon the
covenants, warranties or representations of or with respect
to the REIT or the satisfaction of any judgment against the
REIT, as general partner of Acquiror.
(f) Contributor shall deposit with the Title Company
immediately after Closing cash or OP Units equal to Seven
Hundred Eleven Thousand Three Hundred Dollars ($711,300)
(the "Claim Deposit") to secure any claims owed by
Contributor pursuant to this Agreement for breach by
Contributor of representations, warranties or covenants and
not waived pursuant to the provisions of this Agreement as
of Closing. If Claim Notices aggregating claims less than
Seven Hundred Eleven Thousand Three Hundred Dollars
($711,300) shall have been delivered after Closing and prior
to the first anniversary of the Closing Date, subject to
Contributor's right to contest, the Title Company shall
deliver to Contributor cash or OP Units equal in amount to
the difference between the amount of claims specified in the
Claim Notices and the amount of such Claim Deposit. To the
extent Claim Notices have been delivered to Contributor, the
Claim Deposit shall remain with the Title Company until such
claims shall have been resolved; provided, however, that as
claims become resolved, the Title Company shall deliver to
the Contributor or Acquiror, as the case may be, the amount
held for such claim upon written notice from Contributor and
Acquiror (acting reasonably) directing the Title Company to
release such amount to Contributor or Acquiror. The Title
Company shall invest the cash portion of the Claim Deposit
in United States Treasury bills or notes with a ninety day
maturity. Any dividends payable with respect to OP Units
held in the Claim Deposit shall belong to the OP Unit
Recipients.
ARTICLE VI
DEFAULT
Section 6.1 Acquiror's Deposit and Default.
Contemporaneously with (i.e., within forty-eight (48) hours of)
the execution of this Agreement, Acquiror shall deliver to the
Title Company, as escrow agent, for deposit, an amount equal to
One Million Five Hundred Thousand Dollars ($1,500,000) (the
"Deposit"), which Deposit may, at Acquiror's sole election, be in
the form of a Letter of Credit. The Title Company shall invest
any cash Deposit in United States Treasury bills or notes with a
ninety (90) day maturity. In the event that this transaction is
consummated as contemplated by this Agreement, then the entire
amount of the Deposit, together with any interest accrued
thereon, shall be returned to Acquiror at Closing. The entire
amount of the Deposit, together with any interest accrued
thereon, shall be returned immediately to Acquiror
43
and neither party shall have any further rights or obligations
hereunder except with respect to the Surviving Covenants (a) in the
event of a termination of this Agreement pursuant to SECTION 3.2 or
as the result of the failure of any of the conditions precedent set
forth in SECTION 4.1(A) OR (C) above, (b) in the event that (i)
the conditions precedent set forth in SECTION 4.1(B) shall have
been satisfied or waived, (ii) Acquiror shall have performed
fully or tendered full performance of Acquiror's material Closing
obligations hereunder and (iii) Contributor shall fail to perform
Contributor's material Closing obligations under this Agreement,
or (c) in the event that this Agreement shall be terminated
pursuant to the provisions of SECTION 8.1 hereof. IN THE EVENT
OF BREACH OF THIS AGREEMENT BY ACQUIROR, THE ENTIRE AMOUNT OF THE
DEPOSIT, PLUS ACCRUED INTEREST, SHALL BE DELIVERED TO AND
RETAINED BY CONTRIBUTOR AS LIQUIDATED DAMAGES. ACQUIROR AND
CONTRIBUTOR HEREBY ACKNOWLEDGE AND AGREE THAT CONTRIBUTOR'S
DAMAGES IN THE EVENT OF SUCH A BREACH OF THIS AGREEMENT BY
ACQUIROR WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT THE
AMOUNT OF THE DEPOSIT PLUS ACCRUED INTEREST IS THE PARTIES' BEST
AND MOST ACCURATE ESTIMATE OF THE DAMAGES CONTRIBUTOR WOULD
SUFFER IN THE EVENT THE TRANSACTION PROVIDED FOR IN THIS
AGREEMENT FAILS TO CLOSE AND THAT SUCH ESTIMATE IS REASONABLE
UNDER THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT.
ACQUIROR AND CONTRIBUTOR AGREE THAT CONTRIBUTOR'S RIGHT TO RETAIN
THE DEPOSIT PLUS ACCRUED INTEREST SHALL BE THE SOLE REMEDY OF
CONTRIBUTOR IN THE EVENT OF A BREACH OF THIS AGREEMENT BY
ACQUIROR PRIOR TO CLOSING.
This SECTION 6.1 is intended only to liquidate and
limit Contributor's rights to damages arising due to Acquiror's
failure to purchase the Property and shall not limit the
indemnification obligations of Acquiror pursuant to (i) the
Confidentiality Agreement, (ii) any other documents delivered
pursuant to this Agreement or (iii) SECTIONS 3.1(B), 3.1(C),
3.1(D), 5.4(C)-(R), 5.5(E), 8.2, 8.9 AND 8.13 of this Agreement.
In no event shall Acquiror or any Acquiror Related Parties be
liable to Contributor for any consequential or punitive damages
based upon a breach of this Agreement, including, without
limitation, breaches of representation, warranty or covenant.
Section 6.2 Contributor's Default. (a) If (i) the
conditions precedent set forth in SECTION 4.1(B) shall have
been satisfied or waived, and (ii) Contributor shall fail to
perform its material Closing obligations under this
Agreement and Acquiror shall not have terminated this
Agreement as permitted hereunder, then, in addition to the
return of the Deposit set forth in SECTION 6.1, Acquiror
shall have the right to recover its actual monetary damages
from Contributor up to an aggregate maximum amount equal to
Seven Hundred Eleven Thousand Three Hundred Dollars
($711,300) or, in the alternative, to pursue an action for
specific performance as its sole remedy; provided, however,
that upon the occurrence of an Intentional Material Default
(as hereinafter defined), Acquiror may seek damages (not
subject to any floor or cap) from Contributor provided that,
solely in the event of an Intentional Material Default
described in Clauses (i) and (ii) below, Acquiror has
diligently in good faith sought and been unable to obtain
specific performance within six (6) months after the
occurrence of such Intentional Material
44
Default. "Intentional Material Default" means any of the
following: (i) sale directly or indirectly of all or any portion
of the Property to a person other than Acquiror or the execution
of an agreement for the same; (ii) effecting a financing
encumbering all or any portion of the Property or the
execution of an agreement for the same; (iii) modification
of the Assumed Loan Documents except in accordance with this
Agreement; (iv) material modification or termination after
July 16, 1998, of Leases aggregating in excess of 20,000
square feet, except in accordance with this Agreement; or
(v) entering into any Contracts after July 16, 1998, which
are not cancelable at Closing and which result in a material
adverse economic impact on Acquiror or the Property, except
in accordance with this Agreement. Except as expressly
provided in this Section 6.2(a), Contributor's liabilities
relating to a breach of representation, warranty or covenant
shall be subject to the provisions of SECTION 5.5 and any
additional limitations set forth in this Agreement.
(b) Subject to the provisions of this Section 6.2, in
no event shall Contributor or any Contributor Related
Parties be liable to Acquiror for any consequential or
punitive damages based upon any breach of this Agreement,
including, without limitation, breaches of representation,
warranty or covenant. Subject to the provisions of this
Section 6.2, Acquiror further agrees that recourse for any
liability of Contributor under this Agreement or any
document or instrument delivered simultaneously or in
connection with or pursuant to this Agreement shall be
limited to Seven Hundred Eleven Thousand Three Hundred
Dollars ($711,300). Subject to applicable principles of
fraudulent conveyance, in no event shall Acquiror seek
satisfaction for any obligation from any partners, members,
managers, shareholders, officers, directors, employees,
agents, legal representatives, successors or assigns of
Contributor, nor shall any of the foregoing have any
personal liability for any such obligations of Contributor.
ARTICLE VII
CLOSING
Section 7.1 Escrow Arrangements. An escrow for the
purchase and sale contemplated by this Agreement has been opened
by Acquiror and Contributor with the Title Company as escrow
agent. On the Closing Date, Contributor and Acquiror shall each
deliver escrow instructions to Title Company consistent with this
ARTICLE VII, and designating the Title Company as the "Reporting
Person" for the transaction pursuant to Section 6045(e) of the
Code. In addition, the parties shall deposit in escrow with the
Title Company as escrow agent, on the Closing Date (unless
otherwise provided in this SECTION 7.1), the documents described
below and shall deposit on the Closing Date the funds described
below:
(a) Contributor shall deposit (or cause to be
deposited), with respect to itself or the Property, the
following:
(i) a duly executed and acknowledged Deed for
the Property;
(ii) a duly executed bill of sale pertaining to
the Personal Property in the form attached to this
Agreement as EXHIBIT CC (the "Bill of Sale");
45
(iii) four (4) duly executed counterparts of an
assignment pertaining to the Intangible Property in the
form attached to this Agreement as EXHIBIT DD (the
"Assignment of Intangibles");
(iv) four (4) duly executed counterparts of an
assignment and assumption pertaining to the Leases in
the form attached to this Agreement as EXHIBIT EE (the
"Assignment of Leases");
(v) four (4) duly executed counterparts of an
assignment and assumption pertaining to any Contracts
being assumed by Acquiror, in the form attached to this
Agreement as EXHIBIT FF (the "Assignment of
Contracts");
(vi) four (4) duly executed and acknowledged
counterparts of an Assumption of Loan Documents for the
Assumed Indebtedness, in such form as may be reasonably
acceptable to Aquiror and the Assumed Indebtedness
Lender (the "Assumption of Loan Documents");
(vii) a certificate from Contributor certifying
that Contributor is not a "foreign person" as defined
in Section 1445(f)(3) of the Code ("FIRPTA
Certificate");
(viii) a certificate from Contributor
reaffirming, as of the Closing Date, the
representations and warranties made in SECTION 5.1(A)
in form as set forth on EXHIBIT HH;
(ix) evidence reasonably required by Acquiror
demonstrating that (i) Contributor is an entity validly
existing and (if applicable) in good standing under the
laws of the jurisdiction in which it was formed, and
(ii) Contributor's execution and delivery of this
Agreement and the other documents delivered pursuant
hereto and the consummation of the transactions
contemplated hereby have been fully authorized, which
evidence, if Contributor is a corporation, or a
partnership or limited liability company in which any
of the general partners or managers, as the case may
be, is a corporation, shall mean (x) certified copies
of corporate resolutions duly adopted by the board of
directors of Contributor (or its corporate general
partner or manager) approving Contributor's execution
and delivery of this Agreement and the other documents
delivered pursuant hereto and the consummation of the
transactions contemplated hereby, (y) certificates of
incumbency and (z) certificates of good standing;
(x) the estoppel letters or certificates from
the Assumed Indebtedness Lender, the Majors, the other
tenants and the Master Estoppel of Contributor pursuant
to Section 4.1(a)(iv) hereof;
(xi) any instruments, certificates or documents
required by the Assumed Indebtedness Lender in
connection with the transfer of the Property to
Acquiror and the assumption by Acquiror of the Assumed
Indebtedness.
46
(xii) the Registration Rights Agreement, dated as
of the Closing Date and duly executed by Contributor
and any of the partners of Contributor acquiring OP
Units hereunder; in form as set forth on EXHIBIT N
hereof;
(xiii) the Acknowledgment, duly executed by
each OP Unit Recipient;
(xiv) any transfer tax forms, if applicable, and
other forms and documents reasonably required by the
Title Company; and
(xv) notices directing Tenants, among other
things, to make future payments to Acquiror, including
copies of EXHIBIT II; and
(xvi) reasonable evidence in customary form and
substance, of the outstanding principal balance and all
accrued interest and any prepayment penalties or
premiums on the KeyBank Loan and the Wisconsin Power
Loan as of the Closing Date and
(xvi) any and all other documents reasonably
requested or required in order to consummate the
transactions contemplated herein.
In addition, Contributor shall deliver to Acquiror on the Closing
Date, outside of escrow, the originals of all Leases, Contracts
(if not terminated at or before Closing) or copies thereof if
originals are not available, tenant files, plans of the Property,
leasing brochures for the Property, and all keys to the Property
and all other property relating to the Property in the possession
or control of Contribute, other than files and information
relating solely to Contributor as an entity and not to the
Property.
(b) Acquiror shall deposit:
(i) Acquiror's share of all escrow costs and
Closing expenses;
(ii) four (4) duly executed counterparts for
each of the Assignment of Intangibles, Assignment of
Leases, Assignment of Contracts, and Assumption of Loan
Documents;
(iii) a certificate duly executed by Acquiror in
favor of Contributor confirming the waivers and
acknowledgments set forth in SECTIONS 3.1 AND 5.5
above;
(iv) any instruments, certificates or documents
reasonably required by the Assumed Indebtedness Lender
in connection with the transfer of the Property to
Acquiror and the assumption by Acquiror of the Assumed
Indebtedness;
(v) any and all other documents reasonably
requested or required in order to consummate the
transactions contemplated herein;
47
(vi) evidence reasonably required by
Contributor demonstrating that (A) Acquiror is an
entity in good standing under the laws of the
jurisdiction in which was formed, and (B) Acquiror's
execution and delivery of this Agreement and the other
documents delivered pursuant hereto and the
consummation of the transaction contemplated hereby
have been fully authorized, which evidence shall mean
(1) certified copies of corporate resolutions duly
adopted by the board of directors of the REIT, as
Acquiror's general partner, approving Acquiror's
execution and delivery of this Agreement and the other
documents delivered pursuant hereto and the
consummation of the transactions contemplated hereby,
(2) certificates of incumbency and (3) certificates of
good standing;
(vii) a certificate of Acquiror reaffirming as of
the Closing Date the representations and warranties
made by Acquiror in ARTICLE V.
(viii) the Acknowledgment, duly executed by the
general partner of Acquiror;
(ix) the Registration Rights Agreement dated as
of the Closing Date and duly executed by the general
partner(s) of Acquiror;
(x) Intentionally Deleted;
(xi) a copy of the Partnership Agreement and all
organization documents of the REIT, duly certified by
the REIT as true, complete and correct, and a certified
copy of the Certificate of Limited Partnership of
Acquiror from the Secretary of State of the state of
its formation, dated not more than twenty (20) days
before the Closing Date;
(xii) a copy, certified by the Secretary of State
of the REIT's state of incorporation, of the Articles
of Incorporation of the REIT and a good standing
certificate of the REIT;
(xiii) an opinion by counsel for the REIT
addressed to Contributor and each OP Unit Recipient
stating that the Acquiror and any existing Subsidiary
Partnership each qualifies as a partnership for federal
income tax purposes and is not treated as an
association taxable as a corporation under Section 7704
of the Code or any other provision, which opinion shall
be subject to such counsel's usual assumptions and
qualifications and reliance upon officer's certificates
in similar types of opinions previously given by such
counsel;
(xiv) an opinion by counsel for the REIT
addressed to Contributor and each OP Unit Recipient
stating that the REIT is qualified to operate, is
currently operating as and its proposed methods of
operations will enable it to continue to operate as a
real estate investment trust within the meaning of
Section 856(a) of the Code, which opinion shall be
subject to such counsel's
48
usual assumptions and qualifications and reliance upon
officer's certificates in similar types of opinions
previously given by such counsel
(xv) an opinion by counsel for the REIT
addressed to Contributor and each OP Unit Recipient
stating that the Acquiror and REIT, respectively, have
been duly organized and are in good standing, that the
OP Units have been issued in accordance with all
applicable Legal Requirements and the Partnership
Agreement, that the OP Unit Recipients are limited
partners of Acquiror as of the Closing, and that this
transaction is exempt from pre-closing approval
requirements under the Hart-Scott-Rodino Act. which
opinion shall be subject to such counsel's usual
assumptions and qualifications and reliance upon
officer's certificates in similar types of opinions
previously given by such counsel; and
(xvi) any other forms or documents reasonably
requested by the Title Company.
Section 7.2 Closing. The Title Company shall Close the
transaction contemplated by this Agreement ("Closing") on the
Closing Date (as may be extended pursuant to the terms hereof)
by:
(a) recording the Deed;
(b) issuing the Title Policy to Acquiror;
(c) delivering to Acquiror the Bill of Sale, the
FIRPTA Certificate, and two (2) originals (fully-executed in
counterpart) of the Assignment of Intangibles, Assignment of
Leases, Assignment of Contracts, and Assumption of Loan
Documents;
(d) delivering to Contributor (i) two (2) originals
(fully-executed in counterpart) of the Assignment of
Intangibles, Assignment of Leases, Assignment of Contracts,
Assumption of Loan Documents and the Acknowledgment with
respect to each OP Unit Recipient, (ii) the certificate
described in SECTION 7.1(B)(III) above, (iii) the opinions
of counsel to the REIT described in SECTIONS 7.1(B)(XIII),
7.1(B)(XIV) AND 7.1(B)(XV), and the required OP Units;
(e) returning the Deposit to Acquiror; and
(f) delivering to the parties designated therein any
other instruments delivered into escrow by Contributor
pursuant to SECTION 7.1(A) or Acquiror pursuant to
SECTION 7.1(B).
49
Section 7.3 Prorations.
(a) Taxes. (i) Real estate taxes and any
general or special assessments with respect to the
Property for 1998 which are not billed directly by the
taxing authority to tenants (collectively, "Taxes and
Assessments") shall be prorated as of the Closing Date,
with Contributor being responsible for all such Taxes
and Assessments that are allocable to any period on or
prior to the Closing Date and Acquiror being
responsible for all Taxes and Assessments that are
allocable to any period after the Closing Date. If the
actual amount of Taxes and Assessments to be prorated
for the year in which the Closing occurs is not known
as of the Closing Date, the proration shall be based on
the Taxes and Assessments for the tax year 1997. When
the Taxes and Assessments for the year of the Closing
shall have been determined, Contributor shall be
responsible for the excess, if any, of the actual Taxes
and Assessments allocable to the period of the
proration over the amount of the proration minus the
amounts which shall be received by Acquiror from
tenants for such excess; and Acquiror shall pay to
Contributor the difference allocable to the period of
the proration between the amount of the proration and
the actual Taxes and Assessments, if the actual Taxes
and Assessments shall have decreased.
(ii) Personal Property taxes shall be prorated
as of the Closing Date.
(b) Prepaid Expenses. Acquiror shall be charged for
those prepaid expenses allocable to any period after the
Closing Date, including, without limitation, prepaid rents
under any personal property or ground leases, annual permit
and confirmation fees, fees for licenses and all security or
other deposits paid by Contributor to third parties.
(c) Interest on Assumed Indebtedness. Accrued
interest on the Assumed Indebtedness shall be prorated as of
the Closing Date, with the Contributor being responsible for
all accrued interest allocable to any period on or prior to
the Closing Date and Acquiror being responsible for all
accrued interest allocable to any period after the Closing
Date.
(d) Funds Held by or on Behalf of Assumed Indebtedness
Lender. Acquiror shall be charged with the amount of all
funds of Contributor held in escrow by Lender, Huntington
National Bank, or otherwise, including, without limitation,
any reserves and any funds held for the payment of Taxes and
Assessments and insurance premiums or for any maintenance,
repair or tenant improvements to be made or performed at the
Property. As of June 30, 1998, Huntington National Bank
held Two Hundred Fifty-Five Thousand Four Hundred Sixty-
Seven and 16/100 Dollars ($255,467.16) in such escrow.
50
(e) Property Income and Expense. The following
prorations and adjustments shall occur as of the Closing
Date. Contributor shall receive and retain all income
arising from the Property to the Closing Date and shall bear
all expenses of the operation of the Property to the Closing
Date. Prior to the Closing Date, Contributor shall provide
all information to Acquiror and the Title Company reasonably
required to calculate such prorations and adjustments and
representatives of Acquiror and Contributor shall together
make such calculations (and shall deliver such calculations
to the Title Company at least one (l) Business Day prior to
Closing):
(i) General. (A) Subject to the specific
provisions of clause (ii) below, income and expense
shall be prorated on the basis of a thirty (30)-day
month and on a cash basis (except for items of income
and expense that are payable less frequently than
monthly, which shall be prorated on an accrual basis).
All such items attributable to the period on or prior
to the Closing Date shall be credited to Contributor;
all such items attributable to the period following the
Closing Date shall be credited to Acquiror. Acquiror
shall be credited at Closing with (1) any portion of
security deposits made pursuant to the Leases that are
refundable to existing tenants and have not been
applied to outstanding tenant obligations in accordance
with the terms of the applicable Lease and (2) rent
from tenants prepaid beyond the Closing Date. Acquiror
shall not be entitled to any interest on Lease deposits
or prepaid rent accrued on or before the Closing Date,
except to the extent any such amount of interest is
required to be accrued and refunded or paid to any
tenant under a Lease. Contributor shall be credited
with any refundable deposits or bonds held by any
utility, governmental agency or service contractor, to
the extent such deposits or bonds are assigned to
Acquiror on the Closing Date.
(B) Acquiror shall be credited at
Closing with any tenant allowances or other tenant
inducements to be paid in cash or cash equivalents
(excluding rental abatement) by Acquiror after the
Closing Date with respect to the current term of any
Lease executed, or any extension or expansion of
premises option exercised, in each case, prior to the
date of this Agreement, and with respect to the In-
Negotiation Leases executed prior to the Closing Date
(but not for the Prospective Leases listed on EXHIBIT
F-1 and the Lease Extension Modifications listed on
EXHIBIT F-2). Contributor shall be responsible for the
payment of any leasing commissions with respect to the
current term of any lease executed, or any option to
extend or expand the leased premises which has been
exercised, in each case, prior to the date of this
Agreement and with respect to the In-Negotiation Leases
executed within six (6) months after the Closing (but
not for the Prospective Leases listed on EXHIBIT F-1
and the Lease Extension Modifications listed on EXHIBIT
F-2). With respect to In-Negotiation Leases not
executed on the Closing Date, but which are executed
within six (6) months after the Closing Date,
Contributor shall
51
be responsible for the payment of any leasing commissions
and shall reimburse Acquiror for any tenant allowances to
be paid in cash pursuant to the In-Negotiation Leases,
within thirty (30) days following receipt of an invoice
which may be rendered when the In-Negotiation Leases shall
have been executed by both parties and construction has been
completed. In the alternative, Acquiror shall have the right
to deduct the amount of the tenant allowances to be paid
in cash from the "In-Negotiation Lease Deposit" being
held by the Title Company pursuant to the provisions of
SECTION 7.3(I) hereof.
(C) Acquiror shall assume all
obligations for any leasing commissions, tenant
improvements and other allowances with respect to the
Prospective Leases set forth on EXHIBIT F-1 and Lease
Extension Modifications set forth on EXHIBIT F-2,
executed not later than six (6) months after the
Closing. Contributor shall be credited at Closing with
any leasing commissions or allowances paid in cash or
incurred by Contributor to the extent such items relate
to Prospective Leases or Lease Extension Modifications
executed in accordance with the terms of this Agreement
prior to the Closing Date. Any amounts payable to
Contributor which are not credited at Closing to
Contributor and are due pursuant to this paragraph
shall be paid within thirty (30) days following receipt
of an invoice which may be rendered when the
Prospective Lease or Lease Extension Modification shall
have been executed by both parties.
(ii) Rents.
(A) Fixed or minimum rents, taxes and
assessments and compactor charges (collectively
referred to in this Section 7.2(d)(ii)(A) as "Rents")
payable by tenants under the Leases shall be prorated
as of the Closing Date (whether such collection occurs
prior to, on, or after the Closing Date). Acquiror
shall receive a credit for the amounts actually
received by Contributor on or before the Closing Date
and which pertain to any period after the Closing Date.
Acquiror shall not receive a credit at the Closing for
any rents for the month in which the Closing occurs
which are in arrears and have not then been received.
Notwithstanding any provision of this Agreement,
Contributor shall have the right, in its sole
discretion prior to Closing, to apply any security
deposits held by Contributor under any Leases to remedy
any default or delinquencies under such Leases in
accordance with the terms thereof. As to any tenants
that are delinquent in the payment of Rent or other
charges on the Closing Date, Acquiror shall use
reasonable efforts (but shall not be required to
commence legal action) to collect or cause to be
collected such delinquent rents for twelve (12) months
following the Closing Date. Any and all Rents and
other charges so collected by Acquiror following the
Closing (less a deduction for all reasonable collection
costs and expenses incurred by Acquiror) shall be
successively applied to the payment of (1) Rent and
other charges due and payable in the month in which the
Closing occurs, (2) Rent and other charges
52
due and payable in the months succeeding the month in which
the Closing occurs (up to and including the month in which
payment is made) and (3) Rent and other charges due and
payable in the months preceding the month in which the
Closing occurs. If all or part of any Rents or other
charges received by Acquiror following the Closing are
allocable to Contributor pursuant to the foregoing
sentence, then such sums shall be promptly paid to
Contributor. Contributor reserves the right to collect
delinquent Rents and other charges owed to Contributor
and to pursue any damages remedy Contributor may have
against any tenant or former tenants with respect to
delinquent Rents and other charges, but shall have no
right to exercise any other remedy under the Lease
(including, without limitation, termination, eviction,
or commencing involuntary bankruptcy proceeding against
tenants). Contributor shall promptly pay to Acquiror
amounts allocable to Acquiror pursuant to this Section.
(B) Intentionally deleted.
(C) With respect to the Promotion Fund
- Media Fund (the "PM Fund"), Contributor shall pay all
invoices received prior to the Closing Date and shall
deliver to Acquiror the funds therein that exist on the
Closing Date. Acquiror shall pay all invoices related
to the PM Fund received by Acquiror or Contributor on
or after the Closing Date whether relating to periods
before or after the Closing Date. Contributor warrants
that the amounts remaining in the PM Fund as of the
Closing Date will be sufficient to satisfy all
outstanding obligations with respect to the PM Funds
incurred prior to the Closing Date. The provisions of
the immediately preceding sentence shall survive the
Closing for one (1) year.
(D) With respect to the gift
certificate program, commencing on or about
December 15, 1997 Landlord has been under contract
with Mid-America Money Order Company ("Mid-America")
to operate the gift certificate program for the
Property, so that Mid-America is responsible for
honoring any gift certificates redeemed by customers of
the Property sold while Mid-America's Gift Certificate
Trust Agreement has been in effect. Contributor shall
cause Mid-America to deliver an estoppel certificate
confirming the foregoing facts and stating the amounts
of gift certificates outstanding for which it is
responsible. Contributor will pay to Acquiror on the
Closing Date an amount equal to the unexpired gift
certificates issued by Contributor prior to the
commencement of the program with Mid-America as set
forth on EXHIBIT JJ hereto, which Contributor warrants
to be true and complete. The provisions of the
immediately preceding sentence shall survive the
Closing for one (1) year.
(E) Any charges for common area,
insurance charges, operating and maintenance expenses,
escalation rents or charges, electricity
53
charges, cost of living increases or any other charges of
a similar nature other than fixed or base rent under the
Leases (collectively, "Additional Rents") shall be prorated
as of the Closing Date between Acquiror and Contributor on
or before the date which is sixty (60) days following
the Closing Date, based on the actual amount spent and
received as of the Closing Date and the amount that
will be paid by tenants under their Leases for the
calendar year 1998. Contributor shall provide Acquiror
with information regarding Additional Rents which were
received by Contributor on or prior to Closing and the
amount of reimbursable expenses paid or incurred by
Contributor on or prior to Closing on before the date
which is sixty (60) days following the Closing
("Reconciliation"). Upon reasonable notice and during
normal business hours, Contributor shall make available
to the Acquiror all information reasonably required to
confirm the Reconciliation. In the event of any
overpayment of Additional Rents by the tenants to
Contributor, Contributor shall promptly, but in no
event later than thirty (30) days after date of the
Reconciliation, pay to Acquiror the amount of such
overpayment. In the event of an anticipated
underpayment of Additional Rents by the Tenants to
Contributor, Acquiror shall pay to Contributor the
amount of such underpayment within thirty (30) days
following Acquiror's receipt of such Reconciliation.
(F) With respect to percentage rents
due from tenants for lease years which end on or before
the Closing Date, Contributor shall be entitled to all
such percentage rents. With respect to percentage
rents due from tenants with lease years that end
between the day after the Closing Date and the first
anniversary of the Closing Date, Acquiror shall pay to
Contributor the percentage rent received by Acquiror
for such lease year times a fraction the numerator of
which shall be the number of days between the beginning
of such lease year and including the Closing Date, and
the denominator of which shall be 365. Such amount
shall be paid within thirty (30) days after Acquiror
receives such percentage rents. Upon reasonable notice
and during normal business hours, Acquiror shall make
available to Contributor all information reasonably
required to reconcile the amounts payable hereunder
with respect to percentage rent. Acquiror shall
deliver to Contributor on a quarterly basis copies of
all annual statements of gross sales received by
Acquiror with respect to the period covered by the
percentage rent proration. In the event that Acquiror
audits any tenant paying percentage rent with respect
to the period of the proration or before, Acquiror
shall deliver to Contributor a copy of the results of
such audit within thirty (30) days following receipt
and Contributor will be entitled to any additional
percentage rent for the period of the proration and
before. If any percentage rent has been collected by
Contributor before the Closing, the parties will adjust
the amounts owed hereunder to reflect such receipt of
funds.
54
(f) Partnership Distributions - Dilution Reduction.
Distributions in respect of the OP Units acquired by the OP
Unit Recipients shall begin to accrue from and after the
Closing Date (notwithstanding the fact that such date may
not be the applicable Record Date under the Partnership
Agreement), and the amount of distributions paid or to be
paid to the OP Unit Recipients for the calendar quarter in
which the Closing Date occurs shall be prorated accordingly.
For example, if the Closing Date is August 1, 1998, the OP
Unit Recipients shall be entitled to 61/92 of the
distribution to be made in respect of the OP Units for the
third quarter of 1998 when such distribution is paid with
respect to all Common Units of Acquiror. In addition,
distributions to be paid to the OP Unit Recipients for the
one (1) year period following the Closing shall be reduced
to reflect the dilution resulting from this Transaction in
accordance with the Acknowledgment. The exact amount of
such dilution shall be calculated at Closing and reflected
in the Acknowledgment.
(g) Adjustments to Prorations. After the Closing, the
parties shall from time to time, as soon as practicable
after accurate information becomes available, and in any
event within three hundred sixty-five (365) days following
the Closing Date, recalculate and reapportion any of the
items subject to proration or apportionment (i) which were
not prorated and apportioned at the Closing because of the
unavailability of the information necessary to compute such
proration, or (ii) which were prorated or apportioned at the
Closing based upon estimated or incomplete information or
(iii) for which any errors or omissions in computing
prorations at the Closing are discovered subsequent thereto,
and thereafter the proper party shall be reimbursed based on
the results of such recalculation and reapportionment.
Unless otherwise specified herein, all such reimbursements
shall be made on or before thirty (30) days after receipt of
notice of the amount due. Any such reimbursements not
timely paid shall bear interest at the rate often percent
(10%) per annum from the due date until all such unpaid sums
together with all interest accrued thereon is paid.
(h) Rental Concessions. There shall be no proration
or reduction of the Contribution Consideration with respect
to any tenants that have the right to abate rent or
additional rent for a period of time after the Closing; and
there shall be no proration or reduction in the Contribution
Consideration with respect to signed leases for which rent
shall not have commenced as a result of a construction
allowance, inducement payment or otherwise.
(i) Pending Leases. With respect to any In-
Negotiation Leases which shall not have been signed on the
Closing Date, Contributor shall deposit (the "In-Negotiation
Lease Deposit") with the Title Company an amount equal to
one year of Fixed Minimum Rent and CAM, Taxes and insurance
charges (based on 1998 estimates being charged to tenants)
payable with respect to such In-Negotiation Leases. The
Title Company shall invest the In-Negotiation Lease Deposit
in United States Treasury bills or notes with a ninety (90)
day maturity. In the event that any In-Negotiation Lease is
not signed within six (6) months following the Closing, the
Title
55
Company shall deliver to Acquiror the portion of the
In-Negotiation Deposit applicable to such In-Negotiation
Lease. If an In-Negotiation Lease shall be executed within
the six (6) month period following the Closing, the Title
Company shall deliver to Contributor the portion of the In-
Negotiation Deposit attributable to such In-Negotiation
Lease. Following the Closing Date, subject to Acquiror's
reasonable approval rights, Contributor shall continue the
negotiation in good faith and shall use reasonable efforts
to obtain the execution of the In-Negotiation Leases,
Prospective Leases, and Lease Extension Modifications during
the six-month period following the Closing Date and Acquiror
shall cooperate with Contributor in that endeavor. With
respect to payment of leasing commissions relating to In-
Negotiation Leases, Prospective Leases and Lease Extension
Modifications executed not later than six (6) months after
the Closing Date, Acquiror will pay Contributor or its
designated agents 50% of such commission on signing and 50%
of such commission on opening.
(j) Assumed Indebtedness Adjustment. There shall be a
reduction in the Contribution Consideration equal to the
difference between (i) the present net worth of all
remaining scheduled payments of the Assumed Indebtedness
discounted at "market treasury" plus 100 basis points, less
the outstanding principal balance of the Assumed
Indebtedness. The "market treasury" shall be the yield on
U.S. Treasury 71/4 May 2016 at the close of business on the
day preceding the Closing Date. An example of the
calculation is set forth on EXHIBIT LL.
(k) Timing. Except as otherwise expressly set forth
in this Agreement, all prorations shall be made as of 11:59
p.m. on the night before the Closing. Five (5) days prior
to Closing, Contributor and Acquiror shall agree upon the
proration schedule which will be used by the parties in
determining the Net Contribution Consideration to be
received by Contributor at Closing, subject to post-closing
adjustments pursuant to the terms of this Agreement.
Section 7.4 Other Closing Costs.
(a) Contributor shall be responsible for (i) one-half
(1/2) of any governmental documentary transfer or
transaction taxes or fees due on the transfer of the
Property, (ii) one-half (1/2) of any escrow fee to the Title
Company, (iii) one-half (1/2) of the cost of issuing the
Title Report, (iv) one-half (1/2) of any cost of the
ALTA/ACSM survey of the Property ("Survey") incurred by
Contributor in 1997 and 1998, (v) one-half (1/2) of the
assumption transfer fees and other expenses of the Assumed
Indebtedness Lender in connection with the Acquiror's
assumption of the Assumed Indebtedness, and (vi) recording
fees for the Deed.
(b) Acquiror shall be responsible for and pay (i) one-
half (1/2) of any governmental documentary transfer or
transaction taxes or fees due on the transfer of the
Property, (ii) one-half (1/2) of any escrow fee to the Title
Company, (iii) one-half (1/2) of the cost of issuing the
Title Report, (iv) one-half (1/2) of any cost of the
56
Survey incurred by Contributor in 1997 and 1998, (v) one-half
(1/2) of the assumption transfer fees and other expenses of
the Assumed Indebtedness Lender in connection with Acquiror's
assumption of the Assumed Indebtedness, and (vi) any title
premium in connection with the issuance of the Title
Policies (including endorsements, standard or extended
coverage and any related survey update costs).
(c) Notwithstanding anything to the contrary set forth
in this Agreement, it is understood that any reference to
amounts to be "paid" by Contributor at the Closing shall
mean that such amounts shall be treated as an Adjustment to
the Contribution Consideration and, consequently, Acquiror
shall be responsible for providing the cash to pay all
amounts required to complete the Closing. Any amounts to be
paid by Acquiror to Contributor after the Closing will be
paid in cash
Section 7.5 Further Documentation. At or following the
Closing, Acquiror and Contributor shall execute any certificate
or other instruments required by this Agreement, by law or local
custom or otherwise reasonably requested by the other party to
effect the transactions contemplated by this Agreement.
Section 7.6 Possession of the Properties. Contributor
shall grant and deliver to Acquiror on the Closing Date exclusive
possession of the Property, in the condition required by this
Agreement, subject only to the Permitted Exceptions, free and
clear of all tenancies and rights of occupants other than
occupants and rights under the Leases.
Section 7.7 Escrow Instructions. The provisions of
this Agreement shall be deemed to be escrow instructions to the
Title Company, which the Title Company hereby accepts. The Title
Company shall have the right to require the parties to execute
standard escrow conditions, but in the event of any conflict
between the provisions of this Agreement and such standard escrow
conditions, the provisions of this Agreement shall control.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Damage or Destruction/Eminent Domain.
(a)(i) Acquiror shall be bound to acquire the
Property as required by the terms of this Agreement without
regard to the occurrence or effect of any damage to or
destruction of the Property or condemnation of any Property
by right of eminent domain, provided that the occurrence of
any damage or destruction to the Property involves repair
costs equal to or less than ten percent (10%) of the
Contribution Consideration with respect to insured
casualties and five percent (5%) of the Contribution
Consideration with respect to uninsured casualties ("Damage
Threshold Amount"), and any condemnation that does not
materially and adversely affect the use or value of the
Property ("Immaterial Condemnation"). If Acquiror is so
bound to
57
purchase the Property notwithstanding the occurrence
of damage, destruction or condemnation, or if Acquiror
elects not to terminate this Agreement pursuant to
SECTION 8.1(B), then upon the Closing in the event of damage
covered by insurance or an Immaterial Condemnation occurring
during the Contract Period, Acquiror shall receive a credit
against the Contribution Consideration in the amount (net of
collection costs and costs of repair reasonably incurred by
the Contributor and not then reimbursed) of any insurance
proceeds or condemnation award collected and retained by the
Contributor as a result of any such damage, destruction or
condemnation, plus (in the case of damage) the amount of the
deductible portion of the Contributor's insurance policy,
and the Contributor shall assign to Acquiror all rights to
such net insurance proceeds or condemnation awards as shall
not have been collected prior to the Closing. In the event
of damage not covered by insurance, the amount of such
damage shall be treated as an Adverse Matter pursuant to
Section 3.2.
(ii) In the event of any assignment of insurance
proceeds in accordance with this Section, Contributor shall
notify Acquiror of any disputes between Contributor and the
insurance carrier related to the claim giving rise to such
proceeds. Contributor will reasonably cooperate with
Acquiror in attempting to collect such proceeds from the
insurance carrier and if, in the reasonable judgment of
Acquiror, a collection action is necessary to obtain such
proceeds, the reasonable costs of such collection action
will be divided equally between Contributor and Acquiror.
The provisions of this SECTION 8.1(A) shall survive the
Closing.
(b) If, prior to the Closing Date, any Property
suffers damage or destruction that involves repair costs in
excess of the Damage Threshold Amount or condemnation that
materially and adversely affects the use and value of the
Property, then Acquiror may terminate this Agreement by
giving written notice to Contributor within five (5)
Business Days after Acquiror receives notice of the
occurrence of such damage or condemnation, in which event
the Deposit shall be returned to Acquiror. If the parties
disagree as to whether or not Acquiror is entitled to
terminate this Agreement pursuant to this SECTION 8.1(B),
then such disagreement shall be promptly submitted to
arbitration pursuant to SECTION 8.5.
Section 8.2 Fees and Commissions. Contributor
represents and warrants to Acquiror, and Acquiror represents and
warrant to Contributor, that no person or entity other than
Salomon Smith Barney can properly claim a right to a real estate
broker's or investment banker's commission, finder's fee,
acquisition fee or other brokerage-type compensation
(collectively, "Real Estate Compensation") with respect to the
transaction contemplated by this Agreement based upon the acts of
the representing party. Contributor shall be responsible for any
Real Estate Compensation that may be due to Salomon Smith Barney
resulting from the transaction contemplated by this Agreement.
Contributor shall indemnify, protect, defend and hold Acquiror
harmless from and against, any and all claims, demands, losses,
damages, liabilities, causes of action, liens, costs and expenses
including, without limitation, reasonable attorneys' fees and
costs (to the extent permitted by law) and returned commissions,
directly or
58
indirectly related to, arising out of or in any manner
connected with, in whole or in part, from any claim for
Real Estate Compensation by any person or entity with respect to
the transaction contemplated by this Agreement based upon the
acts of such Contributor or anyone acting or claiming to act on
the part of Contributor. Acquiror shall indemnify, protect,
defend and hold each of the Contributor and the Contributor
Related Parties harmless from and against, any and all claims,
demands, losses, damages, liabilities, causes of action, liens,
costs and expenses including, without limitation, reasonable
attorneys' fees and costs (to the extent permitted by law) and
returned commissions, directly or indirectly related to, arising
out of or in any manner connected with, in whole or in part, any
claim for Real Estate Compensation by any person or entity (other
than Salomon Smith Barney) with respect to the transaction
contemplated by this Agreement based upon the acts of the
Acquiror or anyone acting or claiming to act on the part of
Acquiror.
Section 8.3 Successors and Assigns. Acquiror may not
assign any of Acquiror's rights or duties hereunder without the
prior written consent of Contributor, which consent may be
withheld by Contributor in its absolute discretion.; provided,
however, that Acquiror may assign this Agreement to a wholly-
owned affiliate of Acquiror (an "Affiliate") without
Contributor's consent (but with prior notice to Contributor)
provided that Acquiror (i) represents that such Affiliate is, as
of the Closing Date, an entity that is disregarded as an entity
separate from its owner for federal income tax purposes (in
accordance with Treasury Regulation Section 301.7701-3(b)(1)(ii))
and for applicable state income tax purposes ("Ignored"), and
(ii) agrees to pay, indemnify and hold harmless each of the
Contributor and Contributor Related Parties against (A) any
liability for federal, state or local taxes arising as a direct
or indirect result of any failure of an Affiliate to be Ignored
as of the Closing Date, (B) any costs and expenses including,
without limitation, interest, penalties, reasonable attorneys'
and accounting fees, and any other costs directly or indirectly
related to, arising out of or in any manner connected with the
payments described in this sentence, and (C) any additional
liability for taxes associated with the receipt of any payments
of amounts described in clauses (A) and (B) of this Section 8.3.
Notwithstanding any such assignment, Acquiror agrees that
Acquiror shall remain primarily liable for all representations,
warranties and covenants by Acquiror set forth in this Agreement,
and the OP Units shall be issued by Acquiror and the covenants of
SECTION 5.4 shall continue as obligations of Acquiror.
Section 8.4 Notices. All notices or other
communications required or provided to be sent by either party
shall be in writing and shall be sent by United States Postal
Service, postage prepaid, by certified mail, return receipt
requested, or by any nationally known overnight delivery service,
or by courier hand delivery, provided a receipt is obtained
therefor, or by facsimile transmission provided a confirmation is
received therefor. All notices shall be deemed to have been
given forty-eight (48) hours following deposit in the United
States Postal Service or upon
59
delivery if sent by overnight delivery service, courier or
facsimile. All notices shall be addressed to the party at
the address below:
To Contributor: Janesville Properties Co.
Limited Partnership
Attention: Arthur Weisman
17401 Aldersyde Drive
Shaker Heights, OH 44120
and: Robert T. Samuels
Samuels & Associates
433 South Main Street, Suite 110
West Hartford, Connecticut 06110
Telephone No: (860) 561-6764
Fax No: (860) 561-6768
and: Roger E. Benjamin
Samuels & Associates
7589 Fairmont Court
Boca Raton, FL. 33496
with a copy to: Gary W. Melsher, Esq.
Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Telephone No: (216) 586-7274
Fax No: (216) 579-0212
and a copy to: John R. Herbert
Salomon Smith Barney
388 Greenwich Street
New York, New York 10013
Telephone No: (212) 816-7114
Fax No: (212) 816-7491
To Acquiror: CBL & Associates Limited Partnership
Attention: Charles B. Lebovitz
Watermill Center
800 South Street, Suite 395
Waltham, Massachusetts 02154-1439
Telephone No: (781) 647-3330
Fax No: (781) 647-1611
with a copy to: Keith L. Honnold
Watermill Center
800 South Street, Suite 395
Waltham, Massachusetts 02154-1439
Telephone No: (781) 647-3330
Fax No: (781) 647-1611
60
with a copy to: Mary Ann Sinnott
CBL & Associates Properties, Inc.
One Park Place
6148 Lee Highway
Chattanooga, Tennessee 37421
Telephone No: (423) 490-8638
Fax No: (423) 490-8390
(423) 490-8662
with a copy to: Eugene A. Pinover
Willkie Farr & Gallagher
787 Seventh Avenue
New York, NY 10019
Telephone: (212) 728-8254
Fax No.: (212) 728-8111
Any address or name specified above may be changed by notice
given to the addressee by the other party in accordance with this
SECTION 8.4. The inability to deliver because of a changed
address of which no notice was given, or rejection or other
refusal to accept any notice, shall be deemed to be the receipt
of the notice as of the date of such inability to deliver or
rejection or refusal to accept.
Any notice required hereunder to a OP Unit Recipient which holds
OP Units, shall be deemed given if sent to such party in the
manner set forth in Section 8.4 of the Agreement at the address
set forth in a letter given by Jamesville and each OP Unit
Recipient at the Closing to Acquiror directing Acquiror to
deliver the OP Units directly to the OP Unit Recipients or at
such other address as to which an OP Unit Recipient shall notify
Acquiror pursuant to the provisions of this Section 8.4 hereof.
Section 8.5 Arbitration of Disputes.
(a) Controversies or claims to be submitted to
arbitration pursuant to SECTIONS 3.2, 3.3, 4.2 or 8.1(B)
above shall be resolved exclusively and solely by a
"baseball-style" arbitration conducted before a single
Arbitrator selected under the mutual-elimination procedures
set forth in Section 13 of the Commercial Rules of the
American Arbitration Association ("AAA Rules"). A
"baseball-style" arbitration shall be one in which each of
Acquiror and Contributor makes its best case and the
Arbitrator selects which one of the two is more correct,
without averaging of the two positions of the parties.
Arbitration shall be conducted in Boston, Massachusetts and
Acquiror and Contributor hereby consent to jurisdiction over
their respective persons before the American Arbitration
Association in Boston Massachusetts and before state and
federal courts in Boston Massachusetts for any proceedings
to enforce an arbitration award or decision rendered
pursuant to this Agreement. Contributor and Acquiror hereby
agree that Boston, Massachusetts is a proper venue for all
of the foregoing proceedings. The Arbitrator(s) shall give
effect to statutes of limitation in determining any claim.
Any controversy concerning whether an issue is arbitrable
shall be determined by the Arbitrator(s). The Arbitrator(s)
shall use best efforts to conduct a hearing on the merits
within five (5) Business Days after the appointment of the
Arbitrator(s). The loser of the Arbitration shall pay all
costs in connection therewith. The instructions to the
Arbitrator shall state
61
that the arbitration must be completed within ten (10) Business
Days, but neither party shall have the right to terminate the
Arbitration unless such Arbitrators' decision shall not be rendered
within sixty (60) days of the date of commencement of the
Arbitration proceeding. If such Arbitration is terminated,
the parties will immediately commence another Arbitration to
resolve the issue.
(b) Judgment upon the arbitration award may be entered
in any court of competent jurisdiction. The institution and
maintenance of an action for judicial relief or pursuit of a
provisional or ancillary remedy shall not constitute a
waiver of the right of any party, including the plaintiff,
to submit the controversy or claim to arbitration if any
other party contests such action for judicial relief.
(c) Notwithstanding anything to the contrary set forth
above, in the event that any arbitrable dispute involves the
environmental or physical condition of the Property, the
matter shall be submitted for decision to a single referee
(the "Referee"). The Referee shall be a person of
recognized expertise in the applicable discipline chosen by
Acquiror from a list of three (3) potential Referees
presented by Contributor within one (1) week following the
demand for arbitration. The Referee shall use his or her
best efforts to conduct an informal hearing on the matter in
dispute within ten (10) days of selection, and to render a
decision within thirty (30) days of selection. The losing
party shall pay all costs, including the fee of the Referee.
(d) Notwithstanding anything to the contrary set forth
above, in the event either party demands arbitration
pursuant to the provisions of this Agreement, except as
otherwise expressly provided hereunder, the Closing Date
shall be deferred until the matter is decided pursuant to
the provisions of this SECTION 8.5, unless Contributor
elects to complete the arbitration after the Closing by
delivering written notice to Acquiror within three (3)
Business Days following receipt or delivery of an
arbitration notice. In the event that Contributor elects to
complete the arbitration after the Closing, a portion of the
Net Contribution Consideration comprised of OP Units equal
in value to the estimated amount in dispute in excess of the
Materiality Threshold Amount (as reasonably determined by
Acquiror) shall be held in escrow by the Title Company
following the Closing pending completion of the arbitration.
In the event that the Arbitrator's or Referee's
determination results in a reduction in the Net Contribution
Consideration pursuant to the terms of this Agreement, the
Title Company shall return to Acquiror OP Units with a value
equal to the amount of such reduction and the balance of the
OP Units held in escrow shall be released to Contributor for
allocation among the OP Unit Recipients. In the event that
the arbitration involves economic issues, such as, for
example, discrepancies between the rents reflected on the
Tenant List attached to this Agreement and the actual
Leases, the parties agree that the estimated amount held in
escrow pursuant to this SECTION 8.5(D) shall be determined
by using a cap rate of eight and 75/100 percent (8.75%).
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Section 8.6 Acquiror and Contributor Representatives.
(a) Acquiror shall be entitled to rely upon any
notice, approval or decision with respect to the Property,
if the same is given, made or expressed by the following
individuals acting on behalf of the Contributor: Robert T.
Samuels or Roger E. Benjamin.
(b) Contributor shall be entitled to rely upon any
notice, approval or decision given, made or expressed by the
following individuals acting on behalf of Acquiror: Stephen
Lebovitz, Keith L. Honnald or Mary Ann Sinnott.
Section 8.7 Time is of the Essence. Time is of the
essence of every provision contained in this Agreement.
Section 8.8 Incorporation by Reference. All of the
exhibits and schedules attached to this Agreement or referred to
herein and all documents in the nature of such exhibits, when
executed, are by this reference incorporated in and made a part
of this Agreement.
Section 8.9 Attorneys Fees. In the event any dispute
between Acquiror and Contributor should result in litigation, the
prevailing party shall be reimbursed for all reasonable costs
incurred in connection with such litigation including without
limitation, reasonable attorneys' fees and costs. Attorneys fees
shall be included in the cap on Contributor's exposure set forth
in this Agreement.
Section 8.10 Construction. The parties acknowledge that
each party and its counsel have reviewed and revised this
Agreement and that the normal rules of construction to the effect
that any ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of this
Agreement or any amendments or exhibits hereto.
Section 8.11 Governing Law. This Agreement shall be
construed and interpreted in accordance with and shall be
governed and enforced in all respects according to the laws of
the State of Wisconsin (without giving effect to principles of
conflicts of laws).
Section 8.12 Operating Records. At the Closing
Contributor agrees to deliver to Acquiror Contributor's unaudited
monthly balance sheets and income statements for the Property for
the 1998 calendar year through the last calendar quarter ended
before the Closing Date and for the comparable portion of the
1997 calendar year. Contributor shall have reasonable access to
the financial and all other records delivered by Contributor to
Acquiror.
Section 8.13 Confidentiality. (a) Acquiror and
Contributor each acknowledge and agree that this Agreement and
the terms and conditions set forth are to be kept confidential
and not disclosed to any person or entity that is not a party to
this Agreement or the owner of an interest in the entities that
are a party to this Agreement, unless and until the Closing
occurs in accordance with the terms of this SECTION 8.13;
provided, however, that in accordance with the terms of the
Confidentiality Agreement each party shall be entitled to discuss
and disclose the transaction with employees, agents, consultants,
attorneys, accountants, lenders, clients and representatives of
such party that are engaged in this transaction, subject to the
requirement that
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each of the foregoing shall also be bound by the terms
of this SECTION 8.13. Any public release of information
with respect to the pendency or content of the transaction shall
be subject to the approval of Acquiror and Contributor.
Notwithstanding the foregoing, after the execution of this
Agreement, Acquiror shall be permitted to disclose any matter
relating to the contemplated transaction, the Property or its
operating or financial results as Acquiror may reasonably
determine is necessary or advisable in connection with fulfilling
the Acquiror's or the REIT's obligations under state and federal
securities laws or in connection with discussions with financial
analysts, provided that any such disclosures shall be limited to
the categories of information set forth on EXHIBIT MM, and
provided further that Acquiror shall deliver to Contributor prior
to release any proposed press release relating to the transaction
and shall afford Contributor reasonable opportunity to comment
thereon. None of the Contributor or the Contributor Related
Parties shall have any responsibility with respect to the timing
or content of any such disclosures whatsoever except to the
extent of any disclosure required by applicable law to be made by
Contributor, and Acquiror shall indemnify, protect, defend and
hold the Contributor and the Contributor Related Parties harmless
from and against, any and all claims, demands, losses, damages,
liabilities, causes of action, liens, costs and expenses
including, without limitation, reasonable attorneys' fees and
costs (to the extent permitted by law), directly or indirectly
related to, arising out of or in any manner connected with, in
whole or in part, any inaccuracies in Acquiror's disclosures
pertaining to this Agreement or the contemplated transactions
except for inaccuracies based on information provided by
Contributor to Acquiror. Notwithstanding anything herein to the
contrary, neither party shall make any public announcement or
filing with respect to this transaction until the expiration of
each party's right to terminate the Meridian Contract pursuant to
Section 3.2(i) thereof.
(b) Notwithstanding the termination of this Agreement,
any disclosure of information permitted by Acquiror or the REIT
under paragraph (a) above shall not be deemed a breach or
violation by such Person of the provisions of the Confidentiality
Agreement.
Section 8.14 Counterparts. This Agreement may be
executed in one or more identical counterparts. All counterparts
so executed shall constitute one contract, binding on all
parties, even though all parties are not signatory to the same
counterpart.
Section 8.15 Entire Agreement. The Confidentiality
Agreement and this Agreement, and the attached exhibits, which
are by this reference incorporated herein, and all documents in
the nature of such exhibits and schedules when executed, contain
the entire understanding of the parties and supersede any and all
other written or oral understanding.
Section 8.16 Access to Information. From the date of
this Agreement and from time to time following Closing,
Contributor shall provide to Acquiror, at Acquiror's expense,
such information from Contributor's accountants as Acquiror may
reasonably request and Acquiror shall provide to Contributor at
Contributor's expense, such information relating to the Property
as Contributor may reasonably request in connection with the
preparation of Contributor's tax returns, or for any reason
relating to the historical performance of the Property prior to
the Closing. This provision shall survive the Closing.
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Section 8.17 Waive of Jury Trial. Contributor and
Acquiror waive any right to trial by jury of any claim arising
under or with respect to this Agreement, whether now existing or
hereafter arising. Contributor and Acquiror hereby agree that,
except as provided in SECTION 8.5, any such claim shall be
decided by a court trial without a jury and that any party hereto
may file an original counterpart or copy of this Section with any
court as written evidence of the consent of the other party
hereto to the waiver of its right of trial by jury.
Section 8.18 Binding Agreement. Subject to the
provisions of SECTION 8.3, the provisions of this Agreement shall
be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns. All
representations, warranties and covenants shall not survive the
Closing unless stated to the contrary in this Agreement.
Section 8.19 Code or Treasury Regulation References.
Any reference in this Agreement to sections of the Code or
Treasury Regulations shall be deemed to include any successor
provisions thereto.
Section 8.20 Third Party Beneficiaries. Each OP Unit
Recipient shall be deemed to be a third party beneficiary of this
Agreement and shall have the right to institute any legal actions
without joining Contributor or any other OP Unit Recipients. No
other party shall be deemed to be a third beneficiary of this
Agreement.
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IN WITNESS WHEREOF, Contributor and Acquiror have executed
this Agreement as of the day and year first written above.
ACQUIROR:
CBL & ASSOCIATES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: CBL Holdings I, Inc.
By: /s/ Stephen D. Lebovitz
---------------------
Name: Stephen D. Lebovitz
Title: Executive Vice President
CONTRIBUTOR:
JANESVILLE PROPERTIES CO. LIMITED PARTNERSHIP,
an Ohio limited partnership
And By: /s/ Robert T. Samuels
--------------------------
Name: Robert T. Samuels
Title: General Partner