EXHIBIT 10.10
CONTRIBUTION AGREEMENT
by and between
Edward Rosenberg and Richard Agree, as to property known as
Borman Center, Roseville, Michigan;
Capital Plaza Shopping Center, a Michigan Co-Partnership, as to property known
as Capital Plaza, Frankfort, Kentucky;
Charlevoix Commons, a Michigan Co-Partnership, as to property known as
Charlevoix Commons, Charlevoix, Michigan;
Chippewa Commons, a Michigan Co-Partnership, as to property known as
Chippewa Commons, Chippewa, Wisconsin;
Grayling Plaza, a Michigan Co-Partnership, as to property known as
Grayling Plaza, Grayling, Michigan;
Iron Mountain Plaza, a Michigan Co-Partnership, as to property known as
Iron Mountain Plaza, Iron Mountain, Michigan;
Ironwood Commons, a Michigan Co-Partnership, as to property known as
Ironwood Commons, Ironwood, Michigan;
Marshall Plaza Phase Two, a Michigan Co-Partnership, as to property known as
Marshall Plaza Phase Two, Marshall, Michigan;
North Lakeland Plaza, a Michigan Co-Partnership, as to property known as
North Lakeland Plaza, Lakeland, Florida;
Oscoda Plaza, a Michigan Co-Partnership, as to property known as
Oscoda Plaza, Oscoda, Michigan;
Perrysburg Plaza, an Ohio Partnership, as to property known as
Perrysburg Plaza, Perrysburg, Ohio;
Petoskey Town Center, a Michigan Co-Partnership, as to property known as
Petoskey Town Center, Petoskey, Michigan;
Plymouth Commons, a Michigan Co-Partnership, as to property known as
Plymouth Commons, Plymouth, Wisconsin;
Rapids Associates, a Michigan Co-Partnership, as to property known as
Rapids Associates, Big Rapids, Michigan;
Shawano Plaza, a Michigan Co-Partnership, as to property known as
Shawano Plaza, Shawano, Wisconsin;
West Frankfort Plaza, an Illinois Partnership, as to property known as
West Frankfort Plaza, West Frankfort, Illinois;
Winter Garden Plaza, a Michigan Co-Partnership, as to property known as
Winter Garden Plaza, Winter Garden, Florida
as Transferor
and
AGREE LIMITED PARTNERSHIP,
as Transferee
TABLE OF CONTENTS
Section Page
- ------- ----
1. Conveyance of Property........................................... 2
2. Contribution Terms............................................... 2
3. Title............................................................ 2
4. Representations and Warranties of Transferor..................... 3
5. Assumption by Transferee......................................... 6
6. The Closing...................................................... 7
7. Notices.......................................................... 11
8. Miscellaneous.................................................... 11
EXHIBITS
- --------
EXHIBIT A - Legal Description
EXHIBIT B - Schedule of Permitted Exceptions
EXHIBIT C - Schedule of Legal Proceedings
EXHIBIT D - Schedule of Leases
EXHIBIT E - Schedule of Security Deposits
EXHIBIT F - Schedule of overnmental Notices
EXHIBIT G - Schedule of Environmental Reports
EXHIBIT H - Schedule of Service Contracts
EXHIBIT I - Schedule of Insurance and Insurance Certificates
EXHIBIT J - Schedule of Limited Partnership Interests
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT is made and entered into as of April 21,
1994, by and between Edward Rosenberg and Richard Agree, as to property known
as Borman Center, Roseville, Michigan; Capital Plaza Shopping Center, a
Michigan Co-Partnership, as to property known as Capital Plaza, Frankfort,
Kentucky; Charlevoix Commons, a Michigan Co-Partnership, as to property known
as Charlevoix Commons, Charlevoix, Michigan; Chippewa Commons, a Michigan
Co-Partnership, as to property known as Chippewa Commons, Chippewa,
Wisconsin; Grayling Plaza, a Michigan Co-Partnership, as to property known
as Grayling Plaza, Grayling, Michigan; Iron Mountain Plaza, a Michigan
Co-Partnership, as to property known as Iron Mountain Plaza, Iron Mountain,
Michigan; Ironwood Commons, a Michigan Co-Partnership, as to property known
as Ironwood Commons, Ironwood, Michigan; Marshall Plaza Phase Two, a Michigan
Co-Partnership, as to property known as Marshall Plaza Phase Two, Marshall,
Michigan; North Lakeland Plaza, a Michigan Co-Partnership, as to property
known as North Lakeland Plaza, Lakeland, Florida; Oscoda Plaza, a Michigan
Co-Partnership, as to property known as Oscoda Plaza, Oscoda, Michigan;
Perrysburg Plaza, an Ohio Partnership, as to property known as Perrysburg
Plaza, Perrysburg, Ohio; Petoskey Town Center, a Michigan Co-Partnership, as
to property known as Petoskey Town Center, Petoskey, Michigan; Plymouth
Commons, a Michigan Co-Partnership, as to property known as Plymouth Commons,
Plymouth, Wisconsin; Rapids Associates, a Michigan Co-Partnership, as to
property known as Rapids Associates, Big Rapids, Michigan; Shawano Plaza, a
Michigan Co-Partnership, as to property known as Shawano Plaza, Shawano,
Wisconsin; West Frankfort Plaza, an Illinois Partnership, as to property
known as West Frankfort Plaza, West Frankfort, Illinois; Winter Garden Plaza,
a Michigan Co-Partnership, as to property known as Winter Garden Plaza,
Winter Garden, Florida (collectively, "Transferors" and each, a
"Transferor"), and AGREE LIMITED PARTNERSHIP, a Delaware limited partnership
("Transferee").
WITNESSETH:
WHEREAS, Transferors desire to convey to Transferee, and Transferee
desires to acquire from Transferors, certain land and improvements located
thereon as set forth above and as more particularly described in the legal
descriptions attached hereto as Exhibit A, together with all personal
property owned by any Transferor and located at and used in connection with
the operation of such real property as more fully described below (such
properties are sometimes hereinafter referred to collectively as the
"Portfolio Properties");
WHEREAS, the conveyance contemplated hereunder is in connection with
a proposed public offering by Agree Realty Corporation, a Maryland
corporation ("Agree Corp."), the sole general partner of Transferee. Agree
Corp. intends to qualify as a real estate investment trust for Federal income
tax purposes and will control the Portfolio Properties through its general
partnership interest in Transferee. The formation of Agree Corp. and
Transferee, the conveyance of the Portfolio Properties and the public
offering by Agree Corp., all as more particularly described in the
Registration Statement on Form S-11 for Agree Corp. (Registration. No.
33-73858), as amended and supplemented (the "S-11"), are hereinafter referred
to collectively as the "REIT Transaction." The consummation of the
contribution
hereunder and all of the other elements of the REIT Transaction are referred
to herein as the "Closing"; and
WHEREAS, Transferors desire to contribute the Property (as defined
below) to Transferee in exchange for the consideration stated herein, subject
to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Conveyance of Property. Upon the terms and conditions set forth
herein, each Transferor agrees to grant and convey to Transferee, and
Transferee agrees to acquire from such Transferor, such Transferor's interest
in the real property described in the legal description attached hereto as
Exhibit A applicable to such Transferor, together with the appurtenances
thereto, including, but not limited to, any appurtenances, easements, rights
of way, licenses and privileges belonging or appurtenant to such real
property; all mineral, oil and gas rights, water rights, sewer rights and
other utility rights allocated to such real property and belonging to each
such Transferor; all right, title and interest of each such Transferor in and
to any roads, streets and ways, public and private, serving such real
property, including all rights to the development of such real property
granted by governmental entities having jurisdiction over such real property
(collectively, the "Real Property"); together with all improvements,
buildings and structures located on or attached to the Real Property
(collectively, the "Improvements"); together with all fixtures, equipment,
systems, machinery and other items of personal property owned by each such
Transferor and located at and used in connection with the operation of the
Real Property and Improvements (collectively, the "Personal Property");
together with all rights, title and interest of each such Transferor under
the Leases (as hereinafter defined); and together with all intangible
property related to or used in connection with the Real Property,
Improvements or Personal Property, including, without limitation, all
trademarks, trade and business names, service contracts, guarantees,
licenses, permits, certificates, approvals, authorizations, variances,
consents, warranties, and goodwill (the "Intangibles"). The Real Property,
the Improvements, the Personal Property, the Intangibles and all other rights
and interests described above are collectively referred to herein as the
"Property."
2. Contribution Terms. In exchange for the conveyance of the Property
by Transferors to Transferee hereunder, Transferee will issue limited
partnership interests in Transferee (the "Partnership Interests"), or the
right to receive such Partnership Interests, which at the direction of
Transferors shall be issued to, or for the benefit of, Richard Agree, Edward
Rosenberg and Joel Weiner as set forth on Exhibit J. Such Partnership
Interests and the covenants and agreements of Transferee contained herein
shall be the sole consideration for the contribution of the Property.
3. Title. Title to the Property shall be good and marketable and
shall be conveyed in fee simple, by covenant deed (or such comparable form of
deed as may be the customary means of conveyance in the jurisdiction in which
the Property is located), except for the Real Property known as Borman Center
and Perrysburg Plaza, which shall be
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conveyed by an assignment of a leasehold interest, in each case free and
clear of any and all liens, mortgages, security interests, leases,
restrictions, easements, options, claims, unrecorded agreements or other
encumbrances of any kind whatsoever, except for (i) the deed(s) of trust,
mortgage(s) and other security instruments, if any, identified on Exhibit B
attached hereto (the "Security Instruments"); (ii) the Leases (as hereinafter
defined); and (iii) those other exceptions to title identified on Exhibit B
attached hereto or as approved by Transferee and listed on any title
insurance policy or "marked up" title commitment to be delivered to
Transferee at Closing (the Security Instruments and such other exceptions
shown on Exhibit B being hereinafter referred to collectively as the
"Permitted Exceptions").
4. Representations and Warranties of Transferor. Each Transferor
hereby makes the following representations and warranties to Transferee, as
to itself and the Property to be conveyed by such Transferor hereunder only,
all of which are made and shall be true as of the date of the Closing:
(a) Transferor is the owner and holder of good and marketable fee
simple title to the Property, or in the case of the Real Property known as
Borman Center and Perrysburg Plaza, a valid leasehold interest, in each case
free and clear of any and all liens, mortgages, security interests, leases,
restrictions, easements, options, claims, unrecorded agreements and other
encumbrances of any kind whatsoever, except for the Leases (as hereinafter
defined) and the Permitted Exceptions.
(b) Transferor is not a "foreign person" as that term is used in
the federal Foreign Investment in Real Property Tax Act of 1980 and the 1981
Tax Reform Act, as amended.
(c) The execution, delivery and performance of this Contribution
Agreement by Transferor (i) does not require any further action, consent,
order, registration, filing, declaration or approval in order to make this
Contribution Agreement a binding and enforceable obligation of Transferor or
for Transferor to consummate the transaction contemplated hereby, except as
otherwise disclosed in the S-11 and (ii) does not, and will not with notice
or the passage of time, conflict with or breach, in any manner which would
have a material and adverse effect upon Transferor or the Property, any
agreement or instrument to which Transferor is a party or by which Transferor
or the Property is bound or to which Transferor or the Property is subject,
or any applicable regulation of any governmental agency, or any judgment,
order or decree of any court having jurisdiction over Transferor or the
Property.
(d) The persons executing this Contribution Agreement on behalf
of Transferor have been duly authorized to do so by all necessary partnership
action, and this Contribution Agreement has been duly executed by Transferor
and constitutes a legal, valid and binding obligation of Transferor and is
enforceable against Transferor in accordance with its terms, subject to
principles of equity and applicable bankruptcy, insolvency and other laws
affecting the rights of creditors generally.
(e) In each case except for the Real Property known as Borman
Center, Transferor is a general partnership, duly formed, validly existing,
and in good standing under
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the laws of the state set forth in the preamble to this Agreement, and is
duly qualified to transact business in the jurisdiction in which the Property
is located, except where the failure to be so qualified does not have a
material adverse effect on the Transferor.
(f) There are no lawsuits nor any other legal or governmental
proceedings pending or, to the best of Transferor's actual knowledge,
threatened that concern, involve, affect or are brought in connection with
Transferor's interest in the Property, the Leases (as hereinafter defined) or
the Property, except as identified on Exhibit C attached hereto.
(g) The Property shall be conveyed subject to existing tenancies,
leaseholds and rights of occupancy affecting the Property pursuant to the
leases identified on the rent roll attached hereto as Exhibit D
(collectively, the "Leases"). Exhibit D contains a true, correct and complete
list of all Leases, including any and all amendments or supplements thereto,
and all information regarding the Leases which is included in such Exhibit D
is accurate in all material respects. Except as may otherwise be expressly
provided in the Leases, disclosed on Exhibit D or disclosed in the S-11, (i)
no portion of the Property is occupied or used in any manner by any person or
entity other than pursuant to the Leases; (ii) neither Transferor's interest
in the Leases nor the rents payable thereunder are currently assigned,
pledged or encumbered in any manner, except as collateral pursuant to the
Security Instruments; (iii) the Leases are in full force and effect; (iv) no
tenant under any of the Leases is in material default; (v) Transferor has not
received notice from any tenant under any of the Leases of any alleged
default or breach by Transferor under any such Leases and no such assertion
has been made to Transferor by any tenant under any of the Leases, nor has
any right to offset been exercised under any of the Leases; (vi) all
obligations of the landlord required to be performed under the Leases have
been fully performed and there are no agreements with any tenant under the
Leases for the performance of any work by Transferor, which work has not been
performed and/or paid for; (vii) no tenant has given Transferor notice of its
intention to vacate its demised premises prior to the end of the term, of its
lease; (viii) no tenant under any of the Leases is entitled to, nor has any
tenant claimed to Transferor that it is entitled to, any purchase option,
concession, allowance, set-off, rebate or refund or has prepaid rents or
other charges for more than the current month; and (ix) all security deposits
and letters of credit required under the Leases (collectively, the "Security
Deposits") have been paid to and are being held by Transferor in compliance
with the Leases and, to the best of Transferor's actual knowledge, applicable
law. Attached hereto as Exhibit E is a true, correct and complete list of the
Security Deposits.
(h) To the best of Transferor's actual knowledge, no Hazardous
Materials (as hereinafter defined) are located on or about the Property,
except (i) as may be described in the reports listed in or attached as
Exhibit G hereto, (ii) as may be used in connection with the operation and
maintenance of the Property in compliance with applicable law, and (iii) as
may be brought onto the Property, sold by tenants of the Property or used by
tenants of the Property in a manner customary with such tenant's business and
in compliance with applicable law. In addition, Transferor has not used the
Property for the storage, manufacture, treatment or disposal of Hazardous
Materials. As used in this Contribution Agreement, "Hazardous Materials"
shall mean and include all hazardous or toxic substances, wastes, or
materials, any pollutants or contaminants (including, without limitation,
asbestos and materials which include hazardous constituents), or any other
similar substances or materials which are
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included under or regulated by any local, state or federal laws, rules,
orders and regulations pertaining to environmental regulation, or the use,
processing, storage, disposal, generation or transportation of Hazardous
Materials, or any contamination, cleanup or disclosure related thereto
including, but not limited to, any "hazardous substances," "hazardous waste"
and "hazardous materials," as defined in the Comprehensive Environmental
Response Compensation and Liability Act of 1984, 42 U.S.C. Section 9601 et
seq., as amended, the Resource Conservation and Recovery Act of 1976, as
amended, and the Hazardous and Solid Waste Amendment of 1984, as amended, and
the regulations adopted pursuant thereto.
(i) No bankruptcy, receivership, insolvency, rearrangement or
similar action involving the Property, Transferor, whether voluntary or
involuntary, is pending and Transferor has no present intention of filing any
bankruptcy, insolvency, rearrangement or any similar action or proceeding.
(j) (i) All material consents, authorizations, variances,
certificates of occupancy for occupied space, waivers, licenses, permits and
approvals required for the occupancy, operation, maintenance and management
of the Property (collectively, the "Approvals") have been validly obtained
and are in full force and effect; and (ii) the Property is operated in
accordance with all applicable zoning, land use, environmental, building
code, fire code and other applicable laws and regulations, except where the
failure to do so would not have a material adverse effect on Transferor, the
Property or the Leases. Transferor has not received from any governmental
authority written notice of any revocation, suspension or violation of any of
the Approvals or violation of or non-compliance with any laws, ordinances,
regulations or orders relating to the Property that have not been fully
corrected and remedied, except as described in Exhibit F attached hereto.
(k) No governmental body has served upon Transferor or, to the
best of Transferor's knowledge, any of the tenants under the Leases any
notice (which notice remains, or relates to a proceeding which remains,
pending) of any condemnation, annexation or eminent domain proceeding with
respect to all or any portion of the Property. Transferor has no knowledge of
any pending, threatened, proposed or contemplated proceeding of the type
described in the immediately preceding sentence against the Property or any
part thereof.
(l) All brokerage, service, equipment, supply, management or
leasing agreements relating to the Property to which Transferor is a party
(collectively, "Service Contracts") are identified on Exhibit H attached
hereto. True and correct copies of the Service Contracts have been exhibited
to Transferee. There are no brokerage, service, management, supply or other
leasing commissions due or payable in connection with any of the Leases or
any new or renewal leases or amendments of the Leases or any other agreements
to which Transferor is subject, and there are no defaults by Transferor or
the other parties to such contracts thereunder, except as set forth on
Exhibit H.
(m) Exhibit I contains a correct and complete description of
the insurance policies currently maintained by Transferor with respect to the
Property. Transferor has not received any notices of non-renewal or
cancellation of any such policies or notice of any
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material increase in the cost of current insurance or of any defects or
inadequacies which, if not corrected, would result in termination of any
insurance coverage or a material increase in the cost thereof. Exhibit I also
contains a correct and complete list of all insurance maintained by tenants
under the Leases under which Transferor is a named insured.
(n) There is ingress and egress to and from the Property
either by easement or direct access from a duly opened and dedicated public
road. Transferor has no knowledge of any pending or threatened restriction or
denial of such access, governmental or otherwise, and Transferor has no
knowledge of any federal, state or local plans to change the highway or road
system in the immediate vicinity of the Property in any manner which would
have a material adverse effect on the Property.
(o) To the best of Transferor's actual knowledge, the Property
and the present use and condition thereof do not violate any applicable
easement, deed restrictions or other covenants, restrictions or agreements,
in any manner which would have a material adverse effect on the Property. The
Property and the present use and condition thereof do not violate any site
plan approvals, zoning or subdivision regulations or urban redevelopment
plans applicable to the Property, as modified by any duly issued variances,
in any manner which would have a material adverse effect on the Property.
(p) Except for real and personal property taxes and
assessments for the current year which are not yet due and payable, all real
and personal property taxes and assessments relating to the Property have
been paid. There are no special assessments affecting the Property and
Transferor has no notice of any threatened special assessments affecting the
Property or any contemplated improvements to the Property which may result in
special assessments affecting the Property. Transferor has no notice of any
proposed change in the assessed value of all or any portion of the Property.
(q) (i) The roofs of the buildings comprising the Improvements
are water tight and free of leaks; (ii) the foundations of the buildings
compromising the Improvements are free of defects; (iii) all mechanical
systems, including air conditioning, plumbing, heating, ventilating, sewage,
drainage and electrical systems are free of material defects and in good
repair and condition, and are adequate to service the requirements of the
Improvements and the Property; and (iv) the Improvements are free of any
structural defect.
(r) Transferor is not in default under any of the Security
Instruments, all required payments thereunder have been made, and the
transfer of the Property as contemplated in this Contribution Agreement will
not cause a default under any of the Security Instruments.
5. Assumption by Transferee. Transferee acknowledges and agrees that
Transferee shall take title to the Property subject to and assume the
obligations of Transferors in, to, under or with respect to the Leases, the
Security Deposits and the Service Contracts which accrue from and after the
Closing. In addition, Transferee shall take title to the Property subject to,
and, if required, assume the obligations of Transferors under, the Security
Instruments from and after the Closing. The foregoing shall be evidenced by
such other documents as may be necessary or appropriate to implement the
terms hereof.
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6. The Closing.
(a) At Closing, Transferee shall execute such documents as may
be necessary or appropriate to evidence the contribution of the Property to
Transferee and the granting of the Partnership Interests.
(b) At Closing, Transferors shall execute, acknowledge and
deliver to Transferee covenant or similar deeds or assignments of leasehold
interest, as appropriate, an assignment of Transferors' interest as lessor in
the Leases, a bill of sale and other documents necessary or appropriate to
convey all of Transferors' right, title and interest in and to the Property
and all of Transferors' interests therein to Transferee, in form and
substance reasonably satisfactory to Transferee.
(c) Possession of the Property shall be delivered to
Transferee immediately upon consummation of the Closing, subject to the
rights of the tenants under the Leases.
(d) Transferors shall also deliver to Transferee at the
Closing:
(i) the original or copies, as appropriate, of all
licenses, permits, applications, and the like pertaining to the occupation
and operation of the Property;
(ii) the originals or copies, as appropriate, of all
guaranties or warranties relating to the Property or any part thereof;
(iii) the originals or copies, as appropriate, of all
Leases (including all addenda, amendments and modifications thereto) and the
Security Deposits and any guaranties relating to the Leases;
(iv) a certificate of insurance evidencing coverage
in favor of Transferee and Agree Corp. for all insurance policies maintained
by Transferors with respect to the Property as described in Exhibit I,
together with copies of all such policies, all insurance certificates or
other evidence in Transferors' possession of insurance or self-insurance
maintained by tenants with respect to the Property for the benefit of
Transferors, and Service Contracts;
(v) all plans, specifications, soil reports,
drawings, surveys, parking covenants, common area maintenance agreements,
reciprocal operating agreements, and all other agreements of any kind
affecting the Property and all engineering, inspection and structural reports
that were prepared for Transferors or are in Transferors' possession relating
to the Property;
(vi) copies of all other documents, materials, books
and records in Transferors' possession relating to the Property;
(vii) a written certificate in form reasonably
satisfactory to Transferee certifying that each Transferor is not a person
or entity subject to withholding under the
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Foreign Investment in Real Property Tax Act and containing such Transferor's
tax identification number and address;
(viii) to the extent the Property is subject to an
existing lien which is to be paid following Closing as identified in the
S-11, a pay-off letter dated not earlier than 30 days prior to the date of
Closing indicating the total amount required to satisfy such lien as of the
date of the letter and reflecting the additional amount for each day after
the date of such letter necessary to satisfy all obligations secured by such
lien together with the appropriate release of lien;
(ix) to the extent the Property is subject to an
existing lien which is to be modified or otherwise to remain in place
following Closing as identified in the S-ll, copies of all loan modification
documents and consents to the transfer of the Property by the lender to the
extent required by the Security Instruments affecting the Property;
(x) an owner policy of title insurance (the "Title
Policy") issued as of the date of Closing or title commitment "marked-up" as
of the date of closing by a title insurer reasonably acceptable to Transferee
containing no exceptions to title except the Permitted Exceptions and such
exceptions as Transferee has agreed to and with such endorsements as
Transferors and Transferee may agree and insuring Transferee in the amount
allocated to the Property by Transferors and Transferee.
(e) Transferee shall pay all recording and transfer taxes,
closing costs, costs and fees for title examination and title insurance and
endorsements, recording charges and attorneys' fees in connection with the
Closing, except that Transferors shall pay any recording and transfer taxes,
costs and fees for title examination and title insurance and endorsements,
and recording charges to the extent the same exceed in the aggregate for all
of the Portfolio Properties the amount of $500,000.
(f) Rents, interest, operating expense escalations, utility
charges, real estate taxes, common area maintenance costs, merchants'
association dues and promotion fees, if any, security charges and all other
costs and expenses relating to the ownership, operation or maintenance of the
Property shall be prorated or apportioned as set forth below or as otherwise
set forth in the closing statement executed by Transferors and Transferee at
Closing.
(i) Rents.
(a) Minimum Rents - Minimum rents for the month
of closing shall be treated as received on
the date due. The rent receivable, if any,
on the date of closing shall belong to
Transferors. Monthly rent shall be prorated
on the actual number of days in the month of
closing. Transferee shall receive a credit
for the number of days from and including
the day of transfer.
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With respect to April 1994 rents paid in
arrears (i.e., percentage rents paid in lieu
of minimum rent), a post-closing adjustment
will be made with a payment to Transferee
for the pro rata portion of such rent to but
not including the day of transfer.
(b) Percentage Rents - Percentage rents, except
as set forth in (a) above, will be a
post-closing adjustment to be made at the
end of the lease year of each tenant paying
percentage rents or from time to time as may
otherwise be agreed by the parties.
Transferee shall pay to Transferors the pro
rata share of percentage rents for the lease
year of the tenant using a 365 day year and
the actual number of days to but not
including the day of transfer.
(ii) Common Area Maintenance ("CAM")
CAM expense shall have an April 1, 1994 cutoff
date. All CAM expense for work done prior to April
1, 1994 shall be paid by the Transferors. CAM
expense for work done after April 1, 1994 shall be
paid for by Transferee. Accounts receivable or
collections made for CAM billings to tenants for
work done prior to April 1, 1994 shall belong to
Transferors. Collections made for CAM billings
after April 1, 1994 shall be credited to
Transferee.
(iii) Insurance - Property and casualty insurance has
been paid in advance through October 31, 1994. The
amount of premiums allocated to each project shall
be pro rated for the period of coverage (November
1, 1993 - October 31, 1994) and Transferors shall
receive a credit for the portion of the premium
from and after the
date of Closing.
Tenant reimbursements and accounts receivable for
tenant reimbursements shall belong to Transferors.
Transferee shall receive a credit for the pro rata
portion of the tenant billing of the premium from
and after the date of Closing to October 31, 1994.
(iv) Interest Expense.
(a) Transferors shall pay the interest to the
day of payoff as set forth in the payoff
statements for all loans being discharged
following Closing. Transferors shall pay the
interest on the Nationwide loans to the date
of Closing directly to Nationwide.
(b) Bonds being paid off on May 1, 1994 with
respect to the Real Property known as
Grayling Plaza and Oscoda Plaza:
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The applicable Transferors shall pay the
interest on the bond through but not
including the date of closing. Transferee
shall pay the interest from and after the
date of Closing until May 1, 1994 or the
date the bonds are paid off.
The current amounts in the bond funds as of
the date of Closing prior to any funding with
respect to each bond shall be used to pay the
applicable Transferor's share of the interest and
the balance thereof shall belong to the applicable
Transferor.
(c) AUL, Traveler's and Michigan National Bank
with respect to the Real Property known as
Perrysburg Plaza: interest shall be prorated
to but not including the date of Closing.
(d) With respect to the Real Property known as
North Lakeland Plaza: Transferee shall pay
Michigan National Bank $1,570,000.00 in
payment of the bridge loan from Michigan
National Bank to Perrysburg Plaza used to
pay down the Travelers loan prior to
Closing. Perrysburg Plaza shall pay the
interest on the bridge loan for the period
from the date of paydown to the date of
Closing
(v) Taxes
(a) Amounts collected by Transferors in advance
will be credited to Transferee.
(b) Where Transferors have paid the tax and
billed the tenants in arrears, Transferors
will retain the account receivable.
(c) Short fall - Where the tenants have not
reimbursed 100% of the tax, the net short
fall shall be based on the 1993 net property
tax expense amount. Transferee shall receive
a credit using the net property tax expenses
for 1993 and prorating over the calendar
year 1994 to the day of closing. A
post-closing adjustment based on 1994 actual
expense will be made prior to April 30,
1995.
(g) Each Transferor shall execute and deliver to the title
company that will be issuing an owner's title insurance policy to Transferee
affidavits and indemnity agreements in the form customary in the jurisdiction
in which the applicable Property is located certifying (i) the absence of
claims which would give rise to mechanics' and materialmen's liens, (ii) that
such Transferor and the tenants under the Leases are the only parties in
possession of the Property, (iii) that there are no outstanding judgments
against the Property, and (iv) such other matters as the title company may
reasonably require. Transferors shall deliver to such title company such
evidence as it may require with respect to the authority of the person
executing the deeds of conveyance and assignments of leasehold interest.
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7. Notices. Whenever any notice is required or permitted
hereunder, such notice shall be in writing and either (i) sent by certified
mail, postage prepaid, return receipt requested, or (ii) hand delivered, at
the addresses set forth below:
As to Transferor: Addressed to the applicable
Transferor at:
31850 Northwestern Highway
Farmington Hills, MI 48334
As to Transferee:
Agree Limited Partnership
c/o Agree Realty Corporation
31850 Northwestern Highway
Farmington Hills, MI 48334
Notices which are mailed shall be deemed effective upon deposit into the U.S.
Postal Service. Notices which are hand-delivered (which shall include
delivery by Federal Express or other overnight courier service) shall be
deemed effective upon delivery.
8. Miscellaneous.
(a) The terms and conditions of this Contribution Agreement
shall be binding upon, and shall inure to the benefit of, the parties hereto
and their respective heirs, successors, legal representatives and assigns.
(b) No amendment to this Contribution Agreement shall be
binding on either of the parties to this Contribution Agreement unless such
amendment is in writing and executed by each of the parties hereto.
(c) Except with respect to issues relating to the conveyance
of the Property, which shall be governed by the laws of the jurisdiction in
which the Property is located, this Contribution Agreement and all
transactions hereunder shall be governed by the laws of the State of
Michigan.
(d) Subject to the limitations set forth in that certain
Indemnity Agreement among Richard Agree, Edward Rosenberg, Agree Realty
Corp., Agree Limited Partnership and others dated as of April 22, 1994, all
representations, warranties, covenants and indemnities contained in this
Contribution Agreement shall survive the Closing for a period of one (1)
year.
(e) If any term, covenant or condition of this Contribution
Agreement is held to be invalid or unenforceable in any respect, such
invalidity or unenforceability shall not affect any other provision hereof,
and this Contribution Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.
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(f) The exhibits and schedules attached hereto are made a part
hereof as if fully set forth herein.
(g) This Contribution Agreement may be executed in any number
of counterparts, each of which counterpart shall be deemed an original, and
all of which counterparts taken together shall constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties have caused this Contribution
Agreement to be duly executed as of the date first above written.
WITNESS: TRANSFEROR:
By: /s/ Kenneth Howe
------------------------------
Name: Kenneth Howe /s/ Richard Agree
-----------------------------------
RICHARD AGREE
/s/ Edward Rosenberg
-----------------------------------
EDWARD ROSENBERG
CAPITAL PLAZA SHOPPING CENTER
By: /s/ Richard Agree
------------------------------
Name: Richard Agree, partner
By: /s/ Edward Rosenberg
------------------------------
Name: Edward Rosenberg, partner
CHARLEVOIX COMMONS
By: /s/ Richard Agree
------------------------------
Name: Richard Agree, partner
By: /s/ Edward Rosenberg
------------------------------
Name: Edward Rosenberg, partner
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CHIPPEWA COMMONS
By: /s/ Richard Agree
------------------------------
Name: Richard Agree, partner
By: /s/ Edward Rosenberg
------------------------------
Name: Edward Rosenberg, partner
GRAYLING PLAZA
By: /s/ Richard Agree
------------------------------
Name: Richard Agree, partner
By: /s/ Edward Rosenberg
------------------------------
Name: Edward Rosenberg, partner
IRON MOUNTAIN PLAZA
By: /s/ Richard Agree
------------------------------
Name: Richard Agree, partner
By: /s/ Edward Rosenberg
------------------------------
Name: Edward Rosenberg, partner
IRONWOOD COMMONS
By: /s/ Richard Agree
------------------------------
Name: Richard Agree, partner
By: /s/ Edward Rosenberg
------------------------------
Name: Edward Rosenberg, partner
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MARSHALL PLAZA PHASE TWO
By: /s/ Richard Agree
------------------------------
Name: Richard Agree, partner
By: /s/ Edward Rosenberg
------------------------------
Name: Edward Rosenberg, partner
NORTH LAKELAND PLAZA
By: /s/ Richard Agree
------------------------------
Name: Richard Agree, partner
By: /s/ Edward Rosenberg
------------------------------
Name: Edward Rosenberg, partner
OSCODA PLAZA
By: /s/ Richard Agree
------------------------------
Name: Richard Agree, partner
By: /s/ Edward Rosenberg
------------------------------
Name: Edward Rosenberg, partner
PERRYSBURG PLAZA
By: /s/ Richard Agree
------------------------------
Name: Richard Agree, partner
By: /s/ Edward Rosenberg
------------------------------
Name: Edward Rosenberg, partner
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PETOSKEY TOWN CENTER
By: /s/ Richard Agree
------------------------------
Name: Richard Agree, partner
By: /s/ Edward Rosenberg
------------------------------
Name: Edward Rosenberg, partner
PLYMOUTH COMMONS
By: /s/ Richard Agree
------------------------------
Name: Richard Agree, partner
By: /s/ Edward Rosenberg
------------------------------
Name: Edward Rosenberg, partner
RAPIDS ASSOCIATES
By: /s/ Richard Agree
------------------------------
Name: Richard Agree, partner
By: /s/ Edward Rosenberg
------------------------------
Name: Edward Rosenberg, partner
SHAWANO PLAZA
By: /s/ Richard Agree
------------------------------
Name: Richard Agree, partner
By: /s/ Edward Rosenberg
------------------------------
Name: Edward Rosenberg, partner
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WEST FRANKFORT PLAZA
By: /s/ Richard Agree
------------------------------
Name: Richard Agree, partner
By: /s/ Edward Rosenberg
------------------------------
Name: Edward Rosenberg, partner
WINTER GARDEN PLAZA
By: /s/ Richard Agree
------------------------------
Name: Richard Agree, partner
By: /s/ Edward Rosenberg
------------------------------
Name: Edward Rosenberg, partner
ATTEST: TRANSFEREE:
By: AGREE REALTY CORPORATION,
its General Partner
By: /s/ Kenneth Howe By: /s/ Richard Agree
------------------------- -----------------------
Name: Kenneth Howe Name: Richard Agree
Title: Secretary Title: President
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