Exhibit 10.2
PUT AGREEMENT
THIS PUT AGREEMENT ("Agreement") is dated as of September 24, 2004 (the
"Effective Date"), by and between ROBERT PATTILLO PROPERTIES, INC., a Georgia
corporation ("Contributor"), and AMB PROPERTY, L.P., a Delaware limited
partnership ("AMB").
RECITALS
A. Contributor and AMB Property II, L.P., a Delaware limited partnership ("AMB
II"), have previously entered into that certain Contribution Agreement
dated as of September 24, 2004 (the "Contribution Agreement"), whereby
Contributor has received certain Series N Preferred Units of AMB II
("Units") in exchange for certain Properties (as defined in the
Contribution Agreement).
B. Contributor and AMB hereby desire to provide for certain put rights with
respect to the Units on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the promises, terms and conditions
contained herein and such other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Contributor and AMB hereby agree as
follows:
1. Defined Terms and Recitals. All capitalized terms used herein but not
otherwise defined herein shall have the meanings set forth in the Contribution
Agreement. Contributor and AMB hereby agree that the recitals set forth
hereinabove are true and correct and incorporated into this Agreement.
2. Contributor's Put Option. Contributor shall have the right to sell all, but
not less than all, of the Units by giving written notice (the "Put Notice") to
AMB between June 1, 2005 and January 15, 2006 (inclusive of such
dates)("Contributor's Put Period") of Contributor's exercise of this put right.
Upon timely delivery of the Put Notice to AMB, Contributor shall sell all, but
not less than all, of the Units owned by Contributor to AMB or its designee
(which designee cannot be AMB II or any entity wholly owned by AMB II and as to
which designee all necessary consents shall have been obtained) and AMB or its
designee (which designee cannot be AMB II or any entity wholly owned by AMB II
and as to which designee all necessary consents shall have been obtained) shall
purchase all such Units for cash at a price equal to (i) Fifty Dollars ($50) per
Unit (the "Put Payment") plus (ii) any accrued but unpaid Preferred Return
through the date of the closing of such purchase.
3. Procedures.
(a) The closing of the purchase and sale contemplated by this Agreement
(the "Put Closing") shall occur on the date that is twenty (20) days after the
date of the Put Notice (the "Put Closing Date"). At the closing, Contributor
shall execute and deliver all such documents and take such further action as
shall be necessary or appropriate to assign its interest in the Units to AMB
free and clear of all liens and encumbrances, including, without limitation, an
assignment of Units in the form attached hereto as Exhibit A. The purchase price
shall be paid by wire transfer of immediately available funds.
(b) If the application of Section 11.6 of AMB II's Partnership Agreement
would prevent the transfer of the Units pursuant to this Put Agreement, as
determined by AMB II's general partner, in its sole and absolute discretion,
then (i) the Put Closing Date shall be automatically extended to the date as of
which AMB (or its Designee) is able to acquire (and actually does acquire) the
Units pursuant to this Put Agreement and in compliance with the provisions of
Section 11.6 of AMB II's Partnership Agreement (with such closing to occur on a
date designated in a written notice from AMB to Contributor)(the "Extended
Closing Date"), and (ii) AMB shall (or AMB shall cause an Affiliate of AMB to)
make a loan to Contributor on the date on which the Put Closing Date would have
occurred if the transfer of the Units was not prevented by the application of
Section 11.6 of AMB II's Partnership Agreement, which loan shall be in the
principal amount of the Put Payment (the "Put Loan"). The Put Loan shall bear
interest at the rate of 5.00% per annum on the outstanding principal amount of
the Put Loan. Such interest shall be determined on a daily basis computed on the
basis of a 360-day year of twelve 30-day months (or actual days for any month
which is shorter than a full monthly period), which interest shall be payable as
and when payments of the Series N Preferred Return (as defined in AMB II's
Partnership Agreement) are payable on the Units and Contributor and AMB agree
that the obligation of AMB II to pay the Series N Preferred Return on the Units
and Contributor's obligation to pay interest on the Put Loan shall be deemed
satisfied by offsetting the amounts payable by AMB II against the corresponding
interest payments that are due from Contributor under the Put Loan; provided,
however, that AMB II shall remain responsible for paying to Contributor in
accordance with AMB II's Partnership Agreement any Series N Preferred Return
which remains accrued and unpaid as of the date that the Put Loan is made and
such amounts shall not be offset against interest payable under the Put Loan.
The Put Loan shall be payable in full on the Extended Closing Date, and the
amount payable under the Put Loan shall be offset against the corresponding
amount payable by AMB or its Designee pursuant to this Put Agreement.
Notwithstanding anything to the contrary contained in AMB II's Partnership
Agreement or this Put Agreement, during the term of the Put Loan, Contributor
shall not transfer or encumber all or any portion of the Units or Contributor's
interest therein. It shall be a condition to the making of the Put Loan that the
Put Loan be secured by a valid and enforceable first priority security interest
on the Units (determined without regard to any restrictions under AMB II's
Partnership Agreement that would otherwise prevent Contributor from granting to
the maker of the Put Loan a valid and enforceable first priority security
interest on the Units). In connection with the making of the Put Loan (and as a
condition to AMB's obligation to do so), Contributor agrees to execute,
acknowledge (where applicable) and deliver to AMB or its Affiliate a promissory
note, UCC-1 financing statement, and such other documents as are requested by
AMB and to take all other steps that are necessary in order to evidence and/or
secure the Put Loan as aforesaid and, at AMB's request, Contributor also agrees
to take all steps necessary to cause the Units to be held by a bankruptcy remote
entity during the term of the Put Loan. For the purposes of this Paragraph 4(b),
"Affiliate" shall mean any entity directly or indirectly controlling, controlled
by or under common control with AMB.
(c) Contributor and AMB shall each pay its own legal fees in connection
with any purchase and sale or loan pursuant to this Agreement.
4. Survival. The provisions of this Agreement shall survive the Closing.
5. Notices. Any notices required or permitted to be given hereunder shall
be given in writing and shall be delivered (a) in person, (b) by certified mail,
postage prepaid, return receipt requested, (c) by Federal Express or another
reputable commercial overnight courier that guarantees next day delivery and
provides a receipt, or (d) by telefacsimile or telecopy, and such notices shall
be addressed as follows:
If to Contributor: Robert Pattillo Properties, Inc.
2987 Clairmont Road, Suite 550
Atlanta, GA 30329
Att'n: Daniel L. Wald
Fax: (404) 235-3541
With a copy to: Robert Pattillo Properties, Inc.
2987 Clairmont Road, Suite 550
Atlanta, GA 30329
Att'n: Clay W. Reese
Fax No.: (404) 235-3541
If to AMB: c/o AMB Property Corporation
Pier 1, Bay 1
San Francisco, CA 94111
Att'n: General Counsel
Fax No.: (415) 394-9000
With a copy to: Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, CA 94304-1018
Att'n: Philip J. Levine, Esq.
Fax No.: (650) 494-0792
or to such other address as either party may from time to time specify in
writing to the other party. Any notice shall be deemed delivered when actually
delivered, if such delivery is in person, upon deposit with the U.S. Postal
Service, if such delivery is by certified mail, upon deposit with the overnight
courier service, if such delivery is by an overnight courier service, and upon
transmission, if such delivery is by telefacsimile or telecopy.
6. Attorneys Fees. In the event of any litigation arising out of this
Assignment, the party not prevailing shall pay the prevailing party's costs and
expenses of such litigation, including, without limitation, reasonable
attorneys' fees.
7. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
8. Counterparts. This Agreement may be signed in counterparts and all
counterparts so executed shall constitute one contract, binding on all parties
hereto, even though all parties are not signatory to the same counterpart. The
parties contemplate that they may be executing counterparts of this Agreement
transmitted by facsimile and agree and intend that a signature by facsimile
machine shall bind the party so signing with the same effect as though the
signature were an original signature.
9. Successors and Assigns. This Agreement shall be binding upon, and inure
to the benefit of, the parties hereto and their respective successors, heirs,
administrators and permitted assigns.
10. Amendments. Except as otherwise provided herein, this Agreement may be
amended or modified only by a written instrument executed by Contributor and
AMB.
AMB: AMB PROPERTY, L.P.,
a Delaware limited partnership
By: AMB Property Corporation,
a Maryland corporation,
its general partner
By: /s/ Eugene F. Reilly
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Name: Eugene F. Reilly
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Its: EVP
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CONTRIBUTOR: ROBERT PATTILLO PROPERTIES, INC.,
a Georgia Corporation
By: /s/ Clay W. Reese
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Name: Clay W. Reese
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Its: Vice President
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EXHIBIT A
ASSIGNMENT OF UNITS
THIS ASSIGNMENT is made as of _____________, 200__ (the "Effective Date")
between ROBERT PATTILLO PROPERTIES, INC., a Georgia corporation ("Assignor"),
and AMB PROPERTY L.P., a Delaware limited partnership ("Assignee").
RECITALS
A. Assignor and Assignee have previously entered into that certain Put
Agreement dated ___________, 2004, whereby Assignor agreed to assign its rights,
title and interest in and to certain Series N Preferred Units of AMB Property
II, L.P., a Delaware limited partnership ("AMB II") ("Units") to Assignee, on
the terms and conditions set forth therein.
B. Assignor hereby agrees to assign all of its rights, title and interest
in and to the Units to Assignee, on the terms and conditions set forth herein.
AGREEMENTS
NOW THEREFORE, in consideration of the mutual covenants contained herein,
and intending to be legally bound hereby, Assignor and Assignee agree as
follows:
1. Assignment. Effective as of the Effective Date, Assignor hereby assigns,
transfers and sets over unto Assignee _____________ [insert number of Units]
Units, which represents one hundred percent (100%) of Assignor's right, title
and interest in the Units. Assignor represents and warrants to Assignee that
Assignor is the legal and equitable owner of the Units hereby assigned, that
such Units constitute all of the Units held by Assignor, and that the Units are
hereby assigned free and clear of all liens, charges, encumbrances, pledges,
security interests, taxes, or known rights of others.
2. Effect of Assignment; Further Assurances. Effective as of the Effective
Date, Assignor shall no longer have any rights or obligations under AMB II's
Partnership Agreement. At the request of either party, both parties shall
execute and deliver such further documents as may be reasonably requested by the
requesting party to reflect the assignment of the Units to Assignee.
3. Subject to Contribution Agreement and Partnership Agreement. This
Assignment is made subject to all of the representations, warranties, covenants
and indemnities contained in that certain Contribution Agreement dated September
24, 2004 between Assignor and AMB II (the "Contribution Agreement") to the
extent such representations, warranties, covenants and indemnities survive the
Closing Date (as defined therein) and are applicable hereto. The assignment
being made pursuant to this Assignment shall be subject to and made in
accordance
with the terms and provisions of AMB II's Partnership Agreement (as
defined in the Contribution Agreement).
4. Attorneys Fees. In the event of any litigation arising out of this
Assignment, the party not prevailing shall pay the prevailing party's costs and
expenses of such litigation, including, without limitation, reasonable
attorneys' fees.
5. Governing Law. This Assignment shall be governed by and construed in
accordance with the laws of the State of Delaware.
6. Counterparts. This Assignment may be signed in counterparts and all
counterparts so executed shall constitute one contract, binding on all parties
hereto, even though all parties are not signatory to the same counterpart. The
parties contemplate that they may be executing counterparts of this Assignment
transmitted by facsimile and agree and intend that a signature by facsimile
machine shall bind the party so signing with the same effect as though the
signature were an original signature.
7. Successors and Assigns. This Assignment shall be binding upon, and inure
to the benefit of, the parties hereto and their respective successors, heirs,
administrators and assigns.
8. Amendments. Except as otherwise provided herein, this Assignment may be
amended or modified only by a written instrument executed by Assignor and
Assignee.
9. Further Assurances. Each party hereto agrees to take such actions as the
other party hereto may reasonably request in order to carry out the purposes of
this Assignment and the transactions contemplated hereby.
[SIGNATURES FOLLOW ON NEXT PAGE]
IN WITNESS WHEREOF the parties hereto have duly executed this Assignment as
of the day and year first above written.
ASSIGNEE: AMB PROPERTY, L.P.,
a Delaware limited partnership
By AMB Property Corporation,
a Maryland corporation, its general partner
By:
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Name:
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Its:
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ASSIGNOR: ROBERT PATTILLO PROPERTIES, INC.
a Georgia Corporation
By:
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Name:
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Its:
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By:
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Name:
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Its:
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