Exhibit 10.98
CONTRIBUTION AND EXCHANGE AGREEMENT
AMONG
THE MK CONTRIBUTORS,
THE MK ENTITIES,
THE PATRIOT CONTRIBUTORS,
THE PATRIOT ENTITIES,
PATRIOT AMERICAN MANAGMENT AND LEASING CORP.,
CALI REALTY, L.P.
AND
CALI REALTY CORPORATION
Date: September 18, 1997
TABLE OF CONTENTS
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INDEX OF DEFINED TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . .
INDEX OF SCHEDULES AND EXHIBITS. . . . . . . . . . . . . . . . . . . . . . . .
1. SUBJECT OF CONVEYANCE. . . . . . . . . . . . . . . . . . . . . . . . . .
2. PAYMENT TERMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. INSPECTION PERIOD; RIGHTS OF TERMINATION
AND REJECTION PRIOR TO CLOSING . . . . . . . . . . . . . . . . . . . . .
4. TITLE; MATTERS TO WHICH THIS EXCHANGE IS SUBJECT . . . . . . . . . . . .
5. REPRESENTATIONS AND WARRANTIES OF XXXX . . . . . . . . . . . . . . . . .
6. REPRESENTATIONS AND WARRANTIES OF CALI
AND CRLP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7. COVENANTS OF XXXX. . . . . . . . . . . . . . . . . . . . . . . . . . . .
8. OPTION PROPERTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . .
9. ESTOPPEL CERTIFICATES. . . . . . . . . . . . . . . . . . . . . . . . . .
10. CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11. ADJUSTMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12. CONDITIONS PRECEDENT TO CLOSING. . . . . . . . . . . . . . . . . . . . .
13. LEASING COMMISSIONS AND TENANT IMPROVEMENT OBLIGATIONS . . . . . . . . .
14. ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15. BROKER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
16. CASUALTY LOSS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
i
17. CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
18. TRANSFER RESTRICTIONS; RIGHT OF FIRST OFFER. . . . . . . . . . . . . . .
19. LIMITED GUARANTY OF XXXX . . . . . . . . . . . . . . . . . . . . . . . .
20. TAX MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
21. PUBLICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22. REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23. EMPLOYEE MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . .
24. NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25. INTENTIONALLY DELETED. . . . . . . . . . . . . . . . . . . . . . . . . .
26. CORPORATE NAME CHANGE; MANAGEMENT CHANGES;
OTHER ARRANGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . .
27. RESTRICTIONS ON SALE OF THE PROPERTY . . . . . . . . . . . . . . . . . .
28. SPECIAL ENVIRONMENTAL MATTERS. . . . . . . . . . . . . . . . . . . . . .
29. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ii
INDEX OF DEFINED TERMS
----------------------
DEFINED TERM SECTION
------------ -------
1. Acceptance Notice. . . . . . . . . . . . . . . .Section 18.6(b)
2. Act. . . . . . . . . . . . . . . . . . . . . . .Section 5.2
3. Additional Xxxx Inspection Period. . . . . . . .Section 3.1(a)(c)
4. Additional Rents . . . . . . . . . . . . . . . .Section 11.2
5. Additional Termination Rights. . . . . . . . . .Section 3.1(a)(c)
6. Additional Title Exceptions. . . . . . . . . . .Section 4.1(c)
7. Agreement. . . . . . . . . . . . . . . . . . . .Preface
8. Allocated Property Values. . . . . . . . . . . .Section 2.1
9. Assignment of Contributed Interest . . . . . . .Section 10.2(b)(i)
10. Board. . . . . . . . . . . . . . . . . . . . . .Section 10.3(c)
11. Books and Records. . . . . . . . . . . . . . . .Section 1(g)
12. Built-in-Gain. . . . . . . . . . . . . . . . . .Section 27.1
13. Cali . . . . . . . . . . . . . . . . . . . . . .Preface
14. Cali Board Members . . . . . . . . . . . . . . .Section 26.2(i)
15. Cali Debt Amount . . . . . . . . . . . . . . . .Section 19.1
16. Cali Financials. . . . . . . . . . . . . . . . .Section 6.1(f)
17. Cali 401(k) Plans. . . . . . . . . . . . . . . .Section 6.1(r)(ii)
18. Cali Group . . . . . . . . . . . . . . . . . . .Section 19.1
19. Cali Inspection Period . . . . . . . . . . . . .Section 3.1(a)
20. Cali Property. . . . . . . . . . . . . . . . . .Section 3.1(d)
21. Cali Rent Roll. . . . . . . . . . . . . . . . .Section 6.1(t)
22. Cali Securities. . . . . . . . . . . . . . . . .Section 18.1
23. Cash Payment . . . . . . . . . . . . . . . . . .Section 2.2
24. Casualty . . . . . . . . . . . . . . . . . . . .Section 16.2
25. Casualty Notice. . . . . . . . . . . . . . . . .Section 16.2
26. CERCLA . . . . . . . . . . . . . . . . . . . . .Section 5.1(y)(x)(A)
27. Closing. . . . . . . . . . . . . . . . . . . . .Section 10.1
28. Closing Date . . . . . . . . . . . . . . . . . .Section 10.1
29. Code . . . . . . . . . . . . . . . . . . . . . .Section 5.1(w)(ii)
30. Common Stock . . . . . . . . . . . . . . . . . .Section 2.3(a)
31. Common Units . . . . . . . . . . . . . . . . . .Recitals
32. Consulting Agreement . . . . . . . . . . . . . .Section 12.2(n)
33. Contaminants . . . . . . . . . . . . . . . . .Section 5.1(y)(x)(A)
34. Contributed Entities . . . . . . . . . . . . . .Recitals
iii
35. Contributed Interests. . . . . . . . . . . . . .Section 1.2
36. CRLP . . . . . . . . . . . . . . . . . . . . . .Preface
37. Damaged Property . . . . . . . . . . . . . . . .Section 16.2
38. Deeds. . . . . . . . . . . . . . . . . . . . . .Section 10.2(a)(i)
39. Discharge. . . . . . . . . . . . . . . . . . . .Section 5.1(y)(x)(B)
40. Easement Rights. . . . . . . . . . . . . . . . .Section 1.1(b)
41. Eliminated Property. . . . . . . . . . . . . . .Section 3.4(c)
42. Encumbered Property. . . . . . . . . . . . . . .Section 3.4(c)
43. Environmental Documents. . . . . . . . . . . . .Section 5.1(y)(x)(C)
44. Environmental Laws . . . . . . . . . . . . . . .Section 5.1(y)(x)(D)
45. EP Acceptance Notice . . . . . . . . . . . . . .Section 3.5(b)
46. EP Offer Notice. . . . . . . . . . . . . . . . .Section 3.5(a)
47. EP Offer Period. . . . . . . . . . . . . . . . .Section 3.5(b)
48. EP Offer Price . . . . . . . . . . . . . . . . .Section 3.5(a)
49. EP Offer Terms . . . . . . . . . . . . . . . . .Section 3.5(a)
50. ERISA. . . . . . . . . . . . . . . . . . . . . .Section 5.1(w)(ii)
51. Estate Units . . . . . . . . . . . . . . . . . .Section 5.2(d)
52. Estoppel Certificates. . . . . . . . . . . . . .Section 9.1
53. Exchange Act . . . . . . . . . . . . . . . . . .Section 5.2(b)
54. Exchange Consideration . . . . . . . . . . . . .Section 2.1
55. Exchange Property. . . . . . . . . . . . . . . .Section 1.3
56. Excluded Properties. . . . . . . . . . . . . . .Section 5.1(r)
57. Executive Committee. . . . . . . . . . . . . . .Section 10.3(c)
58. Expansion Space. . . . . . . . . . . . . . . . .Section 25
59. First American . . . . . . . . . . . . . . . . .Section 4.2(a)
60. GAAP . . . . . . . . . . . . . . . . . . . . . .Section 5.1(v)
61. Governmental Authorities . . . . . . . . . . . .Section 5.1(k)
62. Ground Leases. . . . . . . . . . . . . . . . . .Section 1.1(a)
63. Holding Period . . . . . . . . . . . . . . . . .Section 18.3
64. Honeywell Building . . . . . . . . . . . . . . .Section 25
65. Honeywell Consideration. . . . . . . . . . . . .Section 25
66. Improvements . . . . . . . . . . . . . . . . . .Section 1.1(a)
67. Inspection Period. . . . . . . . . . . . . . . .Section 3.1(b)
68. Insurance Policies . . . . . . . . . . . . . . .Section 16.1
69. Intangible Property. . . . . . . . . . . . . . .Section 1.1(f)
70. Land . . . . . . . . . . . . . . . . . . . . . .Section 1.1(a)
71. Leases . . . . . . . . . . . . . . . . . . . . .Section 1.1(d)
72. XXXX . . . . . . . . . . . . . . . . . . . . . .Preface
73. Xxxx Board Members . . . . . . . . . . . . . . .Section 26.2(i)
iv
74. Xxxx-Xxxx. . . . . . . . . . . . . . . . . . . .Section 26.1 & Recital
75. Xxxx Common Units. . . . . . . . . . . . . . . .Section 2.3(a)
76. Xxxx Contributors. . . . . . . . . . . . . . . .Preface
77. Xxxx Debt Amount . . . . . . . . . . . . . . . .Section 19.1
78. Xxxx Entities. . . . . . . . . . . . . . . . . .Preface
79. Xxxx Group . . . . . . . . . . . . . . . . . . .Section 5.1(dd)
80. Xxxx Inspection Period . . . . . . . . . . . . .Section 3.1(b)
81. Xxxx 401(K) Plan . . . . . . . . . . . . . . . .Section 5.1(w)(ii)
82. Xxxx Securities. . . . . . . . . . . . . . . . .Section 5.2
83. Xxxx Security Holders. . . . . . . . . . . . . .Section 5.2(a)
84. Xxxx'x Significant Interest. . . . . . . . . . .Section 26.2(v)
85. Xxxx Unit Group. . . . . . . . . . . . . . . . .Section 19.1
86. Xxxx Unit Holders. . . . . . . . . . . . . . . .Section 2.2
87. Material Taking. . . . . . . . . . . . . . . . .Section 17
88. MK Contributors. . . . . . . . . . . . . . . . .Preface
89. MK Entities. . . . . . . . . . . . . . . . . . .Preface
90. Mortgage Debt Amount . . . . . . . . . . . . . .Section 2.2
91. Mortgages. . . . . . . . . . . . . . . . . . . .Section 2.2
92. New Cali Employees . . . . . . . . . . . . . . .Section 5.1(w)(i)
93. Notice of Offer. . . . . . . . . . . . . . . . .Section 18.6(a)
94. Offer Period . . . . . . . . . . . . . . . . . .Section 18.6(b)
95. Offer Price. . . . . . . . . . . . . . . . . . .Section 18.6(a)
96. Offer Securities . . . . . . . . . . . . . . . .Section 18.6(a)
97. Offer Terms. . . . . . . . . . . . . . . . . . .Section 18.6(a)
98. Offering Notice. . . . . . . . . . . . . . . . .Section 27.4
99. Omnibus Assignment . . . . . . . . . . . . . . .Section 10.2(a)(vi)
100. OP Agreement . . . . . . . . . . . . . . . . . .Section 5.2(a)
101. Option Agreement . . . . . . . . . . . . . . . .Section 8.1
102. Option Properties. . . . . . . . . . . . . . . .Section 8.1
103. Original Allocation Formula. . . . . . . . . . .Section 2.6(b)
104. XXX. . . . . . . . . . . . . . . . . . . . . . .Recital
105. XXX 401(k) Plan. . . . . . . . . . . . . . . . .Section 5.1(w)(ii)
106. Partner Property . . . . . . . . . . . . . . . .Section 3.4(b)
107. Patriot Contributors . . . . . . . . . . . . . .Preface
108. Patriot Entities . . . . . . . . . . . . . . . .Preface
109. PCBs . . . . . . . . . . . . . . . . . . . . . .Section 5.1(y)(vi)
110. Permits. . . . . . . . . . . . . . . . . . . . .Section 5.1(y)(vii)
111. Permits and Licenses . . . . . . . . . . . . . .Section 1.1(f)
112. Permitted Assignee . . . . . . . . . . . . . . .Section 14
v
113. Permitted Encumbrances . . . . . . . . . . . . .Section 4.1
114. Permitted Transferees. . . . . . . . . . . . . .Section 18.5
115. Person . . . . . . . . . . . . . . . . . . . . .Section 18.2
116. Personal Property. . . . . . . . . . . . . . . .Section 1.1(c)
117. Phase I Reports. . . . . . . . . . . . . . . . .Section 3.3
118. Preferred Stock. . . . . . . . . . . . . . . . .Section 6.1(l)(i)
119. Preferred Unit Holders . . . . . . . . . . . . .Section 2.2
120. Preferred Units. . . . . . . . . . . . . . . . .Recitals
121. Pro Forma Rent Roll. . . . . . . . . . . . . . .Section 5.1(f)
122. Property . . . . . . . . . . . . . . . . . . . .Section 1.1(h)
123. Property Financials. . . . . . . . . . . . . . .Section 5.1(v)
124. Real Property. . . . . . . . . . . . . . . . . .Section 1(b)
125. REIT . . . . . . . . . . . . . . . . . . . . . .Section 6.1(m)(i)
126. Rent Roll. . . . . . . . . . . . . . . . . . . .Section 5.1(e)
127. Representation Holding Period. . . . . . . . . .Section 5.4(b)
128. Resolved Property. . . . . . . . . . . . . . . .Section 3.4(d)
129. Restricted Period. . . . . . . . . . . . . . . .Section 27.1
130. RM Debt Amount . . . . . . . . . . . . . . . . .Section 19.1
131. RM Group . . . . . . . . . . . . . . . . . . . .Section 19.1
132. SEC Documents. . . . . . . . . . . . . . . . . .Section 5.2(b)
133. Security Deposit . . . . . . . . . . . . . . . .Section 1.1(d)
134. Selling Holder . . . . . . . . . . . . . . . . .Section 18.6(a)
135. Service Contracts. . . . . . . . . . . . . . . .Section 1.1(f)
136. Stock Option Plan. . . . . . . . . . . . . . . .Section 10.3(c)
137. Subsidiaries . . . . . . . . . . . . . . . . . .Section 6.1(f)
138. Subsidiary Partnership . . . . . . . . . . . . .Recitals
139. Tainted Property . . . . . . . . . . . . . . . .Section 3.4(a)
140. Taxes. . . . . . . . . . . . . . . . . . . . . .Section 20.4
141. Tenants. . . . . . . . . . . . . . . . . . . . .Section 4.1(b)
142. Threshold Amount . . . . . . . . . . . . . . . .Section 7.1(m)
143. Title Commitments. . . . . . . . . . . . . . . .Section 4.2(a)
144. Title Company. . . . . . . . . . . . . . . . . .Section 4.2(a)
145. Title Documents. . . . . . . . . . . . . . . . .Section 4.2(a)
146. Title Policy . . . . . . . . . . . . . . . . . .Section 4.3
147. Tradenames . . . . . . . . . . . . . . . . . . .Section 1.1(e)
148. Transfer . . . . . . . . . . . . . . . . . . . .Section 5.2(a)
149. Transfer Securities. . . . . . . . . . . . . . .Section 18.6
150. Underlying Shares. . . . . . . . . . . . . . . .Section 18.1
151. Underlying Units . . . . . . . . . . . . . . . .Section 18.4
vi
152. Unit Holders . . . . . . . . . . . . . . . . . .Section 2.2
153. Units. . . . . . . . . . . . . . . . . . . . . .Recitals
154. Warrant Holders. . . . . . . . . . . . . . . . .Section 2.2
155. Warrants . . . . . . . . . . . . . . . . . . . .Section 2.5
vii
SCHEDULES
Schedule 1.1(a)(i) Land, Property Addresses, Block and Lot Numbers
Schedule 1.1(a)(ii) Ground Leases
Schedule 1.1(c) Excluded Personal Property
Schedule 2.1 Allocated Property Values
Schedule 3.4(d) Put/Call Procedures
Schedule 4.1(c) Existing Title Policies
Schedule 4.1(e) Surveys of Real Property
Schedule 5.1(a) Xxxx Limited Liability Companies, By State
Schedule 5.1(b) Xxxx Limited Partnerships, By State
Schedule 5.1(c) Non-Consenting Partners By Property
Schedule 5.1(d) Leases as of July 31, 1997
Schedule 5.1(e) Rent Roll as of July 31, 1997
Schedule 5.1(f) Pro Forma Rent Roll
Schedule 5.1(g) Contracts
Schedule 5.1(h) Litigation and Disputes Affecting Exchange Property or
Option Property
Schedule 5.1(i) Proceedings related to the Real Property
Schedule 5.1(j) Third Party Reports related to Physical Condition of
the Real Property and Option Properties/Engineering
Reports
Schedule 5.1(k) Violations affecting the Real Property or Option
Properties
Schedule 5.1(l) Personnel
Schedule 5.1(m-1) Capital Expenditure Obligations Affecting Exchange
Property - XXXX'x Responsibility
Schedule 5.1(m-2) Capital Expenditure Obligations Affecting Exchange
Property - Xxxx-Xxxx'x Responsibility
Schedule 5.1(o) Encumbered Personal Property
Schedule 5.1(q) Exchange Property Generating Revenue/Income Other than
the Leases
Schedule 5.1(r) Excluded Properties
Schedule 5.1(t) Storage Tanks or Vessels on Real Property or Option
Property
Schedule 5.1(u) Repair Work Recommended by Insurance Companies, Fire
Underwriters or Mortgage Holders
Schedule 5.1(v) Year-End Adjustments
Schedule 5.1(w)(i) All Existing Xxxx Entities and XXX Benefit Plans and
Agreements
Schedule 5.1(y)(ii) Environmental Discharges
Schedule 5.1(y)(iv) Storage Tanks and Vessels
Schedule 5.1(y)(v) Asbestos
Schedule 5.1(y)(vi) PCB Items
Schedule 5.1(y)(vii) Missing Permits
Schedule 5.1(y)(viii) Property Previously Used as a Transfer Station,
Incinerator, Landfill or Resource Recovery Facility
Schedule 5.1(z) Tax Audits Regarding Exchange Property or Option
Property
Schedule 5.1(aa) Tax Basis of Exchange Property
Schedule 5.1(bb) Maintenance Organization Delinquencies, Late Payments,
etc.
viii
Schedule 5.1(ff)(i) Additional Services Provided to Tenants
Schedule 5.1(ff)(ii) Tenant Rent Based on Income/Profits of Any Person
Schedule 5.1(ff)(iii) Agreements in Which Tenant Rent Attributable to
Personal Property Exceeds 15% of Total Rent
Schedule 5.1(gg) Xxxx Material Liabilities and Obligations
Schedule 6.1(a) Cali Non-Consenting Partners
Schedule 6.1(i) Cali Subsidiaries, Partnerships and Trusts
Schedule 6.1(j) Extraordinary Cali Business Transactions
Schedule 6.1(k) Cali Material Liabilities and Obligations
Schedule 6.1(l)(iii) Conversion/Exchange Rights Regarding Warrants, Options
and Convertible Securities
Schedule 6.1(m)(ii) Cali Tax Proceedings
Schedule 6.1(m)(iv) Individual Owners of Cali Interests in Excess of 9.8%
Schedule 6.1(q) Cali Board Committees
Schedule 6.1(r)(i) Agreements with Certain Cali Executives
Schedule 6.1(s) Agreements Regarding Sale or Voting of Units or Common
Stock
Schedule 6.1(t) Cali Rent Roll
Schedule 6.1(v) Litigation, Suits Affecting Cali Property
Schedule 6.1(w) Condemnation Notices Affecting Cali Property
Schedule 6.1(x) Notices of Violation Regarding Cali Property
Schedule 6.1(y) Storage Tanks and Vessels on Cali Property
Schedule 7.1(m) Threshold Amount
Schedule 7.2 Exchange Property Charts and Tables
Schedule 8.1 Option Properties
Schedule 10.2(b)(vi) Exchange Property Insurance Policies
Schedule 12.2(n) XXXX Properties
Schedule 18.4 Agreement Regarding Common Stock Trading Blocks of One
Million Shares or Less
Schedule 19.1(a) Cali Group Guarantors/Indemnitors
Schedule 19.1(b) RM Group Guarantors/Indemnitors
Schedule 20.3 Reduction of Assessed Valuation of the Real Property
and the Option Properties
Schedule 26.2(v) Xxxx Significant Interest Attribution Rules
Schedule 27.1 7-1/2 Year Average Restricted Property
Schedule 28.1 Special Environmental Matters
ix
EXHIBITS
Exhibit A MK Contributors
Exhibit A-1 MK Entities
Exhibit A-2 Patriot Contributors
Exhibit A-3 Patriot Entities
Exhibit 2.4(a)(i) Series A Preferred Unit/Certificate of Designation
Exhibit 2.4(a)(ii) Series B Preferred Unit/Certificate of Designation
Exhibit 2.5 Warrants to Purchase Common Units
Exhibit 9.1 Form of Estoppel Certificate
Exhibit 10.2(a)(vi) Omnibus Assignment
Exhibit 10.2(b)(i) Assignment of Contributed Interest
Exhibit 10.2(c)(ix) Tradenames Assignment Agreement
Exhibit 10.2(c)(x)-1 Non-Competition Agreements/Xxxxx Xxxx, Xxxxx Xxxx and
Xxxxxxxxx Xxxx
Exhibit 10.2(c)(x)-2 Non-Competition Agreement/Xxxxxxx Xxxx
Exhibit 10.3(j) Registration Rights Agreement
Exhibit 10.3(o) Summary of Principal Terms of Amendment to the OP
Agreement
x
CONTRIBUTION AND EXCHANGE AGREEMENT
THIS CONTRIBUTION AND EXCHANGE AGREEMENT (the "AGREEMENT") made this 18th
day of September, 1997 by and among the parties set forth on EXHIBIT A annexed
hereto and made a part hereof (collectively, the "MK CONTRIBUTORS"), the parties
set forth on EXHIBIT A-1 annexed hereto and made a part hereof (collectively,
the "MK ENTITIES"), each having an address at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxx
Xxxx, Xxx Xxxxxx 00000, the parties set forth on EXHIBIT A-2 annexed hereto and
made a part hereof (collectively, the "PATRIOT CONTRIBUTORS"), the parties set
forth on EXHIBIT A-3 annexed hereto and made a part hereof (collectively, the
"PATRIOT ENTITIES"), and Patriot American Management and Leasing Corporation
("XXX"), each having an address at 0000 XXX Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000; (the MK Contributors and the Patriot Contributors shall collectively be
referred to as the "XXXX CONTRIBUTORS" and each individually a "XXXX
CONTRIBUTOR"); (the MK Entities and the Patriot Entities shall collectively be
referred to as the "XXXX ENTITIES" and each individually a "XXXX ENTITY"); (the
Xxxx Contributors and the Xxxx Entities shall collectively be referred to as
"XXXX") and CALI REALTY, L.P., a Delaware limited partnership ("CRLP") and CALI
REALTY CORPORATION, a Maryland corporation ("CALI"), each having an address at
00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000.
RECITALS
A. The Xxxx Contributors and their respective partners are, collectively,
the owners of one-hundred (100%) percent of their respective partnership,
limited liability company and/or other ownership interests in and to the Xxxx
Entities (to the extent any of the Xxxx Entities are contributed to CRLP by
assignment of partnership interest as is contemplated by Section 1.2 hereof,
such Xxxx Entities are hereinafter referred to as the "CONTRIBUTED ENTITIES").
The Xxxx Entities own one-hundred (100%) percent of the respective properties
and one-hundred (100%) percent of the respective ground lessees' interests in
the ground leases set forth in SCHEDULES 1.1(A)(I) and 1.1(A)(II), respectively.
X. XXXX owns, develops and manages various commercial properties located
throughout New Jersey, New York, Texas, Arizona, Florida, Pennsylvania,
Nebraska, Iowa and California. Cali, through CRLP and certain affiliated
entities of CRLP, similarly owns, develops and manages various commercial
properties located throughout New Jersey, New York, Pennsylvania and
Connecticut.
X. XXXX, CRLP and Cali have determined that it is in the best interests
of the parties' long term strategic growth to combine their respective
properties and related assets. In order to effectuate this combination, XXXX
has agreed (i) to contribute certain properties, ground leases and/or
one-hundred (100%) percent of its partnership, limited liability company and/or
other ownership interests in and to certain Xxxx Entities to CRLP or, at CRLP's
xxxxxxxxx,
0
to an entity (1) owned by (a) CRLP, (b) Cali and/or (c) Cali's one-hundred
(100%) percent owned subsidiaries and (2) which for federal income tax purposes
is (i) taxed as a partnership or (ii) disregarded as an entity distinct from its
owners (each a "SUBSIDIARY PARTNERSHIP" and collectively, the "SUBSIDIARY
PARTNERSHIPS"), and (ii) to cause certain key executives of XXXX to become part
of the management of Cali. Such contribution shall be treated as a contribution
by XXXX to CRLP followed by a subsequent contribution from CRLP to such
Subsidiary Partnership and any reference in this Agreement to a contribution to
CRLP or a Subsidiary Partnership shall be so treated. Cali shall manage and
operate the properties and/or the Xxxx Entities being contributed by XXXX. The
Xxxx Contributors shall provide, in the amounts and terms as the Xxxx
Contributors shall determine, certain resources, management expertise, personnel
and management facilities to assist in the management and operation of the
properties to be contributed. The Xxxx Contributors have been granted certain
rights with respect to appointing members of the Board of Directors of Cali,
which is the sole general partner of CRLP. Cali has agreed to seek shareholder
approval to amend its corporate charter to change its name to "Xxxx-Xxxx Realty
Corporation" ("XXXX-XXXX"). Any reference herein to Xxxx-Xxxx shall be deemed
to be the entity subsequent to the merger contemplated by this Agreement.
D. In consideration of XXXX'x contribution of certain properties, ground
leases and certain ownership interests in the Xxxx Entities to designees of
CRLP, Cali and CRLP collectively have agreed to exchange with XXXX a combination
of (i) cash, (ii) common operating partnership units of CRLP ("COMMON UNITS"),
(iii) Series A preferred operating partnership units of CRLP ("SERIES A
PREFERRED UNITS"), (iv) Series B preferred operating partnership units of CRLP
("SERIES B PREFERRED UNITS" and together with Series A Preferred Units,
sometimes hereinafter referred to collectively as "PREFERRED UNITS") (Xxxx
Common Units (as hereinafter defined) and Preferred Units, are sometimes
referred to collectively as the "UNITS"), and (v) warrants to purchase Common
Units. In addition, CRLP will accept certain exchange of the property and
ownership interests subject to certain debt of the Xxxx Entities.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and of other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound hereby, do hereby agree as follows:
1. SUBJECT OF CONVEYANCE.
1.1 In accordance with the terms and conditions of this Agreement
and subject to Cali and CRLP's performance and satisfaction of the conditions,
covenants and obligations contained herein, the Xxxx Contributors and the Xxxx
Entities agree that the assets set forth in paragraphs (a) through (h) of this
Section 1.1 shall be directly or indirectly the subject of conveyance of this
transaction and shall be contributed in accordance with Sections 1.2 and 1.3
hereof:
2
(a) (i) those certain parcels of real property situate, lying
and being in the States of New Jersey, New York, Texas, Arizona, Florida,
Nebraska, Iowa and California and being more particularly described on SCHEDULE
1.1(A)(I), which sets forth the property addresses and blocks and lots, if
applicable, for each parcel (the "LAND"); (ii) all right, title and interest of
the lessees in and to the ground leases described on SCHEDULE 1.1(A)(II), which
sets forth the names of each party to each of the ground leases, the dates
thereof and any amendments thereto, as well as the name, state of organization
and type of entity of each ground lessee (the "GROUND LEASES"); and (iii) all
improvements located on the Land or subject to the Ground Leases (the
"IMPROVEMENTS");
(b) all rights, privileges, grants and easements appurtenant to the
Xxxx Entities' interest in the Land, Improvements and Ground Leases, including
without limitation, all of the Xxxx Entities' right, title and interest in and
to all land lying in the bed of any public street, road or alley, all mineral
and water rights and all easements, licenses, covenants and rights-of-way or
other appurtenances used in connection with the beneficial use and enjoyment of
the Land, the Improvements and the Ground Leases (collectively, the "EASEMENT
RIGHTS"); the Land, the Ground Leases, the Improvements and the Easement Rights
shall hereinafter be collectively referred to as the "REAL PROPERTY";
(c) except as set forth on SCHEDULE 1.1(C), all personal property
owned or licensed by the Xxxx Entities for use in connection with any of the
Real Property, including without limitation fixtures, equipment, inventory and
computer programming and software (the "PERSONAL PROPERTY");
(d) all leases and other agreements with respect to the use and
occupancy of the Real Property, together with all amendments and modifications
thereto and any guaranties provided thereunder (the "LEASES"), and rents,
additional rents, reimbursements, profits, income, receipts and the amount
deposited (the "SECURITY DEPOSIT") under any Lease in the nature of security for
the performance of the Tenant's obligations under such Lease;
(e) subject to the limitations and exceptions described in Section
7.4, the sole and exclusive right to the tradenames "The Xxxx Companies" and
"Xxxx", and any trademark applicable thereto, and/or any name by which any of
the Real Property is commonly known, and all goodwill, if any, related to said
names excluding, however, the names of "Patriot" and "Patriot American"
(collectively, the "TRADENAMES");
(f) all permits, licenses, guaranties, approvals, certificates and
warranties relating to the Real Property and the Personal Property
(collectively, the "PERMITS AND LICENSES"), all of the Xxxx Entities' right,
title and interest in and to those contracts and agreements for the servicing,
maintenance and operation of the Real Property (the "SERVICE CONTRACTS") and
telephone numbers in use at any of the Real Property or the management offices
and corporate headquarters of the Xxxx Entities (together with the Permits and
Licenses and the Service Contracts, are collectively referred to as the
"INTANGIBLE PROPERTY");
3
(g) all books, records, promotional material, tenant data, leasing
material and forms, past and current rent rolls, files, statements, tax returns,
market studies, keys, plans, specifications, reports, tests and other materials
of any kind owned by or in the possession of XXXX which are or may be used in
the operation of the Real Property or Personal Property (collectively, the
"BOOKS AND RECORDS"); and
(h) all other rights, privileges and appurtenances owned by XXXX,
if any, and in any way related to the rights and interests described above in
this Section.
The Real Property, the Personal Property, the Leases, the Security
Deposits, the Tradenames, the Intangible Property, the Books and Records, the
property rights set forth in subparagraph (h) above and all other property
interests being conveyed hereunder are hereinafter collectively referred to as
the "PROPERTY".
1.2 With respect to the Property to be contributed by assignment of
partnership interest, the Xxxx Contributors shall contribute and shall cause
their respective partners to contribute to CRLP or, at CRLP's direction, to its
Subsidiary Partnerships, the Contributed Entities to be designated by the Xxxx
Contributors by assignment of one-hundred (100%) percent of their rights, title
and interests, in all of their ownership rights and interests in and to the
Contributed Entities free and clear of any and all liens, mortgages,
encumbrances or security interests (the "CONTRIBUTED INTERESTS").
1.3 In the event the Xxxx Contributors determine, in their sole
discretion, not to contribute or are otherwise unable to contribute a Xxxx
Entity by the assignment of Contributed Interest pursuant to Section 1.2, the
Xxxx Entities owning all remaining Property shall, subject to Section 3.4,
contribute the Property owned by such Xxxx Entities to CRLP or, at CRLP's
direction, to its Subsidiary Partnerships, by deed transfer or assignment of
Ground Lease at Closing.
The Property conveyed by deed transfer or assignment of Ground Lease
pursuant to Section 1.3 and/or the Property contributed by assignment of the
Contributed Interests pursuant to Section 1.2 and all other property interests
being contributed and conveyed hereunder shall hereinafter collectively be
referred to as the "EXCHANGE PROPERTY".
2. PAYMENT TERMS.
2.1 The aggregate consideration for the Exchange Property (the
"EXCHANGE CONSIDERATION") is One Billion One-Hundred Fifty-One Million
Seven-Hundred Thirty-Seven Thousand and Twelve ($1,151,737,012) Dollars to be
paid by CRLP in accordance with Section 2.2 plus the Warrants (as defined in
Section 2.5). The Exchange Consideration shall be allocated among the Exchange
Property as set forth on SCHEDULE 2.1 (the "ALLOCATED PROPERTY VALUES").
4
2.2 At Closing, and upon satisfaction of the terms and conditions
provided herein, XXXX agrees to contribute the Exchange Property to CRLP or its
Permitted Assignees (hereinafter defined) and CRLP (and Cali where applicable)
agrees, subject to adjustment as set forth herein, (a) to pay to XXXX or their
designees an amount of Four-Hundred Seventy-Six Million One-Hundred Six Thousand
($476,106,000.00) Dollars (the "CASH PAYMENT"), (b) to issue the Xxxx Common
Units (hereinafter defined) to such persons as XXXX shall direct in writing as
soon as practicable following the date hereof (the "XXXX UNIT HOLDERS") and in
accordance with Section 2.3 hereof, (c) to issue the Preferred Units to such
persons as XXXX shall direct in writing as soon as practicable following the
date hereof (the holders of Series A Preferred Units and Series B Preferred
Units sometimes hereinafter referred collectively to as the "PREFERRED UNIT
HOLDERS") and in accordance with Section 2.4 hereof (the Xxxx Unit Holders and
the Preferred Unit Holders may sometimes collectively be referred to as "UNIT
HOLDERS"), (d) to issue the Warrants to such persons as XXXX shall direct in
writing as soon as practicable following the date hereof (the "WARRANT HOLDERS")
and in accordance with Section 2.5 hereof and (e) to take title to certain
Exchange Property subject to certain mortgages to be agreed upon by the parties
and which mortgages are to have an anticipated average weighted annual interest
rate of not more than seven and twenty-three one hundredths (7.23%) percent or
such other average weighted annual interest rate as is mutually acceptable to
CRLP and the Xxxx Contributors (collectively, the "MORTGAGES"), which Mortgages
shall have an aggregate outstanding principal balance immediately following the
Closing, subject to adjustment as set forth in this Section 2, of Three-Hundred
and Two Million One-Hundred Forty-Seven Thousand ($302,147,000.00) Dollars (the
"MORTGAGE DEBT AMOUNT").
2.3 (a) Simultaneous with CRLP accepting the Exchange Property,
CRLP shall issue, subject to adjustments as set forth herein, 3,931,048 Common
Units ( the "XXXX COMMON UNITS" ) convertible into Cali Common Stock ("COMMON
STOCK"); PROVIDED, HOWEVER, that the Xxxx Unit Holders shall be issued and shall
hold the Xxxx Common Units in accordance with the provisions of Section 5.4.
(b) With respect to the first Partnership Record Date, on
or after the Closing, the Xxxx Unit Holders shall receive distributions payable
with respect to the Xxxx Common Units on a PRO-RATA basis based upon the number
of days during the calendar quarter preceding such Partnership Record Date that
the Xxxx Unit Holders held Xxxx Common Units.
2.4 (a) Simultaneous with CRLP accepting the Exchange Property,
CRLP shall issue, subject to adjustments as set forth herein, 40,000 Series A
Preferred Units more fully described in the Certificate of Designation set forth
on EXHIBIT 2.4(A)(I) and 209,656 Series B Preferred Units more fully described
in the Certificate of Designation set forth on EXHIBIT 2.4(A)(II) annexed
hereto; PROVIDED, HOWEVER, that the Preferred Unit Holders shall be issued and
shall hold the Preferred Units in accordance with the provisions of Section 5.5.
(b) With respect to the first Partnership Record Date (as
defined in the OP Agreement), on or after the Closing, the Preferred Unit
Holders shall receive distributions
5
payable with respect to the Preferred Units on a PRO-RATA basis based upon the
number of days during the calendar quarter preceding such Partnership Record
Date that the Preferred Unit Holders held Preferred Units.
2.5 Simultaneous with CRLP's accepting the Exchange Property, CRLP
shall issue 2,000,000 warrants to purchase Common Units (the "WARRANTS") the
form of which is annexed hereto as EXHIBIT 2.5.
2.6 The particular items and types of consideration comprising the
Exchange Consideration shall be subject to the following adjustments and
modifications:
(a) XXXX shall have the right to increase or decrease the
Mortgage Debt Amount by an amount equal to 20% of the Mortgage Debt. The
parties acknowledge that they expect XXXX to exercise its right in the foregoing
sentence no later than November 1, 1997 although it may be exercised after such
date, but in no event later than the mailing of the definitive Cali proxy
statement to its shareholders. The Cash Payment shall be decreased or
increased, respectively, by any increase or decrease made to the Mortgage Debt
Amount pursuant to this Section 2.6(a). Any increase or decrease in the
Mortgage Debt Amount pursuant to this Section 2.6 (a) may be effected by (i)
placing Industrial Development Agency financing in connection with certain
leasing requirements, (ii) substituting other mortgages encumbering Exchange
Property for all or a portion of one or more of the Mortgages, or (iii) a
combination of the foregoing.
(b) To the extent that any Exchange Property has been
eliminated from the transaction contemplated by this Agreement pursuant to
Section 3.4 or Section 28, then the Mortgage Debt Amount (as determined after
any increase or decrease pursuant to Section 2.6(a)) shall be reduced by the
greater of (i) the principal amount of any Mortgage encumbering that particular
Eliminated Property (as defined in section 3.4(c)) or (ii) 26% of the Allocated
Property Value for such Eliminated Property. After the Mortgage Debt Amount has
been reduced with respect to each such Eliminated Property, then the aggregate
remaining reduction in the Exchange Consideration with respect to all of the
Eliminated Properties shall be allocated first to the Cash Payment up to a
maximum reduction of $79,903,860 which amount may be reduced in XXXX'x sole and
absolute discretion and thereafter any further reduction of the Exchange
Consideration shall be allocated in accordance with the following formula (the
"ORIGINAL ALLOCATION FORMULA"): 51.4758% to the Cash Payment, 16.1747% to the
Xxxx Common Units and 32.3495% to the Preferred Units. The Mortgage Debt Amount
as reduced pursuant to this Section 2.6(b) shall be referred to hereinafter as
the "ADJUSTED MORTGAGE DEBT AMOUNT".
(c) At the Closing, XXXX shall have the right to increase
the Adjusted Mortgage Debt Amount by an additional amount (the "EXCESS MORTGAGE
AMOUNT") not to exceed $476,106,000 (reduced or increased by the net amount of
any adjustments made to the Cash Payment pursuant to Sections 2.6(a) and (b)).
The Cash Payment shall be reduced by an amount equal to the Excess Mortgage
Amount. Notwithstanding the previous two sentences
6
in this Section 2.6(c) to the contrary, XXXX'x right to increase the Adjusted
Mortgage Debt Amount shall be limited to the amount of Mortgages for which the
Xxxx Contributors shall have delivered to CRLP at the Closing all necessary
consents to the reduction or satisfaction of such Mortgages.
(d) Any restructuring or modification by XXXX of any of the
Mortgages, the Mortgage Debt Amount or the Adjusted Mortgage Debt Amount
pursuant to this Section 2.6 shall not result in additional costs, either direct
or indirect, to Cali, CRLP or Xxxx-Xxxx and XXXX hereby agrees to pay for any
and all costs associated with the debt adjustment and restructuring efforts
requested by XXXX at or prior to Closing (including without limitation
prepayment penalties, mortgage recording fees, lender "consent" fees, commitment
fees, points, administrative fees, legal fees, additional debt service
requirements or any other costs or expenses) related to the Mortgages, the
adjustments to the Mortgage Debt Amount, the Excess Mortgage Amount, the
Adjusted Mortgage Debt Amount, the repayment of the Excess Mortgage Amount or
otherwise arising from the adjustments contemplated by this Section 2.6.
3. INSPECTION PERIOD; RIGHTS OF TERMINATION
AND REJECTION PRIOR TO CLOSING
3.1 (a) Starting with the date hereof through the period ending
at 5:00 p.m. on December 12, 1997 (the "CALI INSPECTION PERIOD"), time being of
the essence as to such date, CRLP may terminate this Agreement for any reason by
written notice given to XXXX.
(b) Starting with the date hereof through the period ending
at 5:00 p.m. on October 27, 1997 (the "XXXX INSPECTION PERIOD"), time being of
the essence as to such date, XXXX may terminate this Agreement for any reason by
written notice given to CRLP (the Cali Inspection Period and the Xxxx Inspection
Period are hereinafter sometimes collectively referred to as the "INSPECTION
PERIOD").
(c) XXXX shall have an additional right to terminate this
Agreement (the "ADDITIONAL TERMINATION RIGHT") through the expiration of the
Cali Inspection Period (the "ADDITIONAL XXXX INSPECTION PERIOD") if and only if
(i) there shall occur a material adverse change to the business, properties,
results of operations or financial condition of CRLP, Cali and its Subsidiaries,
taken as a whole, and/or (ii) the stock price of Cali, as reported in the Wall
Street Journal, shall have an average closing price below $31.50 calculated as
of any given day based upon such day's closing price and the preceding four (4)
consecutive trading days' closing price. Notwithstanding the foregoing, in the
event Cali waives any remaining time under the Cali Inspection Period, it shall
provide XXXX ten (10) days prior written notice thereof; the expiration of such
ten (10) day period shall be the date on which the Additional Termination Right
shall automatically terminate. Notwithstanding the notice provisions of Section
24 of this Agreement, for the purposes of this Section 3 only, a notice of
termination executed by counsel for either party and telecopied to the other
party and its counsel no later than 5:00 p.m. on the date of expiration of the
Cali Inspection Period, the Xxxx Inspection Period or the Additional
7
Xxxx Inspection Period, as the case may be, shall be deemed effective for
purposes of terminating this Agreement. In the event either party terminates
this Agreement pursuant to this Section 3.1, this Agreement shall be null and
void and the parties hereto shall be relieved of all further obligations
hereunder except as otherwise provided herein. In the event neither party
terminates this Agreement pursuant to this Section 3.1, then the parties shall
be deemed to have elected not to terminate this Agreement.
(d) During the parties' respective Inspection Periods, the
parties hereto may perform or cause to be performed certain tests, studies and
investigations of or related to the Exchange Property, the Option Properties (as
defined in Section 8 hereof) and any real property owned by CRLP or its
affiliates (the "CALI PROPERTY"). The tests and studies contemplated hereunder
shall include but not be limited to, soil tests and borings, ground water tests
and investigations, percolator tests, surveys, architectural, engineering,
subdivision, environmental, access, financial, market analysis, development and
economic feasibility studies and other tests, investigations or studies as the
parties, in each party's sole discretion, determines is necessary or desirable
in connection with this transaction and may inspect the physical (including
environmental) and financial condition of the Exchange Property, the Option
Properties and the Cali Property. Such inspection may include but shall not be
limited to the Ground Leases, Leases, Service Contracts, copies of the Xxxx
Entities' tax returns (to the extent such returns have been filed), (and the
corresponding documentation related to the Cali Property) and the Property
Financials and the Cali Financials as of and for the years ending December 31,
1994, 1995 and 1996 and for the period of January 1, 1997 through June 30, 1997
(and September 30, 1997 if the termination of any Inspection Period occurs on or
after November 14, 1997), engineering and environmental reports, development
approval agreements, permits and approvals, which inspection shall be
satisfactory to each party in its sole discretion. Each party agrees to
cooperate with the other party in such review and inspection and to the extent
not yet delivered, shall deliver said documents and information to the other
promptly.
3.2 Cali, CRLP, XXXX, their agents, advisors and contractors, shall
have reasonable access to the Real Property, the Option Properties and the Cali
Property and other information pertaining thereto in the possession or within
the control of the other party including, without limitation, all Securities and
Exchange Commission filings of CRLP and Cali and federal, state, and local
income, excise, franchise, and all other tax filings of Cali, CRLP and the Xxxx
Entities, for the purpose of performing its due diligence review described in
Section 3.1 above. Any inspection of the Real Property, the Option Properties
or the Cali Property shall be performed in accordance with the access agreements
previously entered into by CRLP and XXXX. Such right of inspection and the
exercise of such right shall not constitute a waiver by either party of the
breach of any representation or warranty of either party which might, or should,
have been disclosed by such inspection. The parties shall cooperate with each
other in facilitating its due diligence inquiry and shall obtain, and use
commercially reasonable efforts to obtain, any consents that may be necessary in
order for the parties to perform same. In addition, each party shall notify the
other party of any dangerous conditions on the Real Property, the Cali Property
and the Option Properties of which any party has knowledge, including, without
8
limitation, conditions which due to the nature of the borings, studies,
investigations, inspections or testing to be performed by or on behalf of either
party may pose a dangerous condition to either party or to either party's agents
or contractors.
3.3 If CRLP shall determine, in its sole discretion, that (i) any
new environmental "Phase I" study is required for any Real Property or (ii) an
existing environmental "Phase I" study is required to be updated (collectively,
the "PHASE I REPORTS"), all costs and expenses in connection with the Phase I
Reports shall be borne equally by XXXX and CRLP. If CRLP determines that
environmental investigations beyond a Phase I Report is warranted, CRLP shall
bear the costs and expenses relating to the additional environmental studies to
be so prepared. CRLP shall have the right, in its sole discretion, to choose
the environmental engineers and professionals necessary to prepare such
additional environmental studies.
3.4 (a) If, at any time prior to the Closing Date, CRLP
determines in its sole discretion that any of the Real Property is subject to
materially adverse environmental conditions including without limitation, any
environmental condition that has a material adverse effect on the property value
of any Real Property, on the current use of any Real Property, on groundwater
at, on, under, about or emanating from any Real Property or on the ability of
CRLP to finance any Real Property ("TAINTED PROPERTY"), CRLP may eliminate such
Tainted Property from this transaction, upon written notice to XXXX, and CRLP
shall proceed to consummate this transaction provided such Tainted Property and
any Real Property eliminated pursuant to Section 28 shall in the aggregate
constitute less than five (5%) percent of the aggregate Allocated Property Value
for the Exchange Property. In such event, the Exchange Consideration shall be
reduced by the Allocated Property Value attributable to such Tainted Property in
accordance with Section 2.6(b). Notwithstanding the foregoing, if CRLP
determines to eliminate any Tainted Property from this transaction, but XXXX
nonetheless desires to include any or all such Tainted Property in the
transaction, then XXXX shall so notify CRLP. Thereafter, CRLP and XXXX shall,
prior to Closing, negotiate in good faith with each other to seek to reach an
agreement on the cleanup standards to be used in connection with curing the
adverse environmental condition at, on, under, about or emanating from the
Tainted Property as well as any other issues related to curing such adverse
environmental condition, including without limitation, post closing access. If
CRLP and XXXX shall be unable to agree upon the cleanup standards for a Tainted
Property and on any other issues related to curing such adverse environmental
condition, prior to Closing, then such Tainted Property shall be eliminated from
the transaction. If CRLP and XXXX are able to agree upon the cleanup standards
or on any other issues related to curing such adverse environmental condition,
prior to Closing, then XXXX shall either: (i) cure such adverse environmental
condition at its sole cost and expense prior to Closing or (ii) (a) cure such
adverse environmental conditions subsequent to Closing at its own cost and
expense and (b) escrow funds, post a letter of credit or pledge Units in
sufficient amount to secure such obligation, in either instance (i) or (ii) in
accordance with the agreed upon standard and any other agreement reached between
the parties. Notwithstanding the immediately preceding sentence, if XXXX
requires that a Tainted Property be included in the transaction contemplated by
this Agreement, XXXX shall be obligated to cure such adverse environmental
condition after the Closing at its
9
sole cost and expense, even if the amount of security escrowed, pledged or
posted by XXXX shall be insufficient to pay the costs required to cure such
environmental condition. If CRLP chooses not to eliminate a Tainted Property
from this transaction, Xxxx-Xxxx and CRLP agree to waive all of its rights under
this Agreement or Environmental Law to require XXXX to clean up such adverse
environmental condition on such Tainted Property, including, without limitation
its rights under CERCLA or any analogous state laws. However, notwithstanding
the preceding sentence, if a claim is made or action instituted against
Xxxx-Xxxx or CRLP by any third party, including without limitation any
Governmental Authority, with respect to such adverse environmental condition,
then CRLP shall have the right to involve any or all of the Xxxx Entities which
held title to such Tainted Property or the Xxxx Contributors which owned such
Xxxx Entity on or prior to the date hereof, in the claim or action whether
through litigation or any other proceeding.
(b) XXXX shall take all commercially reasonable action to
obtain the requisite consents and approvals from its third-party partners to
consummate the transactions contemplated hereby. In the event that XXXX is
unable to obtain the requisite consent or approval from any third-party partners
as contemplated by Section 7.1(o), XXXX may eliminate any of the Exchange
Property in which such objecting third-party partner has an interest
(individually a "PARTNER PROPERTY" and collectively the "PARTNER PROPERTIES")
and shall proceed to consummate this transaction provided such Partner Property
or Partner Properties, in the aggregate, constitute less than twenty (20%)
percent of the aggregate of the Allocated Property Value of the Exchange
Property. In such event, the Exchange Consideration shall be reduced by the
Allocated Property Value attributable to such Partner Property in accordance
with Section 2.6(b). The failure of XXXX to obtain such requisite consents and
approvals, after taking all commercially reasonable action, shall not constitute
a "willful default" as that term is used in Section 22.2.
(c) XXXX shall take all commercially reasonable action in
negotiating prepayment premiums and/or restructuring certain debt encumbering
the Exchange Property. In the event XXXX determines that certain of the
indebtedness encumbering the Exchange Property cannot be reasonably satisfied,
negotiated or restructured, XXXX may eliminate any of the Exchange Property from
the transaction (individually an "ENCUMBERED PROPERTY" and collectively the
"ENCUMBERED PROPERTIES") and shall proceed to consummate the transaction,
provided that an Encumbered Property or the Encumbered Properties, in the
aggregate, constitute less than fifteen (15%) percent of the aggregate of the
Allocated Property Value of the Exchange Property. In such case, the Exchange
Consideration shall be reduced by the Allocated Property Value attributable to
such Encumbered Property in accordance with Section 2.6(b). In no event shall a
combination of Tainted Property, Real Property eliminated pursuant to Section
28, Partner Property and Encumbered Property (collectively, the "ELIMINATED
PROPERTY") be eliminated from this transaction which, in the aggregate,
constitutes more than twenty (20%) percent of the aggregate of the Allocated
Property Value of the Exchange Property. Cali acknowledges that the continued
ownership by XXXX of an Eliminated Property or of any Real Property pursuant to
the terms of Article 27 hereof shall not
10
violate the restrictions on competition contained in the Non-Compete Agreements
or the Xxxxx Employment Agreement.
(d) In the event that subsequent to Closing, XXXX resolves
to the satisfaction of CRLP any issue which caused any Exchange Property to
become an Eliminated Property (the "RESOLVED PROPERTY"), XXXX shall have the
option to "put" to Xxxx-Xxxx and/or Xxxx-Xxxx shall have the option to "call" a
Resolved Property at the Allocated Property Value allocated to such Resolved
Property in accordance with the "put"/"call" procedures set forth in SCHEDULE
3.4(D), provided (i) no material adverse condition has affected such Resolved
Property, including without limitation any materially adverse environmental
condition, including without limitation, any environmental condition that has a
material adverse effect on the property value of any Resolved Property, on the
current use of any Resolved Property, on groundwater, at, on, under, about or
emanating from any Resolved Property or on the ability of CRLP to finance any
Resolved Property; (ii) the applicable representations and warranties set forth
in Section 5.1 hereof including without limitation those set forth in Sections
5.1(h), (k), (s), (t) and (y) shall be true and correct as to such Resolved
Property as of the date of purchase by Xxxx-Xxxx of a Resolved Property; (iii)
there shall not have been any Discharge of Contaminants at such Resolved
Property, which has not been investigated and remediated in accordance with
Environmental Laws (provided, nothing contained herein shall require XXXX to
remediate any Discharge of Contaminants, other than in the event where cleanup
standards and other issues relating to curing the Discharge have been agreed
upon by Cali and XXXX, and if no agreement is reached, such Eliminated Property
shall not be deemed a Restored Property unless and until XXXX remediates it, if
it so desires); and (iv) the provisions of Section 12.2(j)-(m) shall have been
complied with as to any Resolved Property located in the applicable states, as
well as any other applicable Environmental Law governing the transfer of any
Resolved Property. The net amount of Exchange Consideration payable pursuant to
such "Put" or "Call" option in the preceding sentence above any Mortgage to
which such Resolved Property shall be taken subject to, shall be in proportion
to the Cash Payment, the Xxxx Units and the Preferred Units in accordance with
the Original Allocation Formula. The Put/Call provisions of this Section 3.4(d)
shall remain in effect for a period of two (2) years from the Closing Date.
Upon the second anniversary of the Closing Date, the Put/Call provision shall
expire and any remaining Eliminated Property shall be subject to a right of
first offer in favor of Xxxx-Xxxx as more particularly described in Section 3.5
hereof. All Eliminated Property shall be subject to the provisions of this
Section 3.4(d) as evidenced by the recordation of a declaration of "put/call"
provisions against the Eliminated Property in the appropriate real property
records. Notwithstanding anything to the contrary contained in this Section 3,
the restrictions set forth herein shall not apply to any Eliminated Property
which shall have been transferred to a lender through a foreclosure, deed in
lieu of foreclosure or pursuant to a plan of reorganization.
3.5 (a) If, any time after the second anniversary of the
Closing Date and through the date on which the Xxxx Group fails to maintain a
Xxxx Significant Interest (as defined in Section 26.2), XXXX should desire to
sell an Eliminated Property, XXXX shall first deliver written notice to CRLP
(the "EP OFFER NOTICE"), which EP Offer Notice shall specify (i)
11
the proposed selling price for the Eliminated Property (the "EP OFFER PRICE");
(ii) the method of payment of the EP Offer Price (e.g., payment in Common Units,
cash or a combination of the two); and (iii) all other material terms and
conditions of the offer including without limitation the proposed method of
conveyance (the "EP OFFER TERMS"). The EP Offer Notice shall constitute an
irrevocable offer by XXXX to sell to CLRP the Eliminated Property at the EP
Offer Price and on the EP Offer Terms.
(b) Within ten (10) business days following CRLP's receipt
of the EP Offer Notice (the "EP OFFER PERIOD"), CRLP may elect to purchase the
Eliminated Property by delivering to XXXX a notice that CRLP is electing to
purchase such Eliminated Property pursuant to the terms of the EP Offer Notice
(an "EP ACCEPTANCE NOTICE"). Should CRLP fail to deliver an EP Acceptance
Notice within the EP Offer Period, CRLP shall be deemed to have irrevocably
declined to purchase such Eliminated Property. A duly delivered EP Acceptance
Notice shall be deemed to be an irrevocable commitment by CRLP to purchase from
XXXX such Eliminated Property indicated in the EP Acceptance Notice.
(c) CRLP shall be obligated to purchase such Eliminated
Property, in accordance with the EP Offer Notice, as it elected to purchase in
the EP Acceptance Notice, at a closing pursuant to Section 3.5(e) of this
Agreement.
(d) If CRLP (i) notifies XXXX that it is electing not to
purchase such Eliminated Property or (ii) does not deliver an EP Acceptance
Notice prior to the expiration of the EP Offer Period, XXXX may sell the
Eliminated Property to a third-party purchaser; PROVIDED, HOWEVER, that any such
sale of the Eliminated Property to such third-party purchaser must be made
substantially on the same terms and conditions as those set forth in the EP
Offer Notice, including without limitation, a purchase price that is no less
than ninety-five percent (95%) of the EP Offer Price; PROVIDED, FURTHER, that
any such sale of such Eliminated Property to such third-party purchaser must be
consummated no later than one-hundred twenty (120) days following the original
delivery of the EP Offer Notice. If XXXX wishes to sell such Eliminated
Property on terms more favorable than ninety-five (95%) percent of the EP Offer
Price to a third-party purchaser or does not sell such Eliminated Property on
substantially the terms and conditions contained in the EP Offer Notice (within
ninety-five (95%) percent of the EP Offer Price) within the aforementioned
one-hundred twenty (120) day period (it being understood that if the EP Offer
Terms contemplate Common Units to XXXX, a sale by XXXX to a third party may
include as consideration the issuance of operating partnership units to XXXX
issued by another entity), XXXX shall again be obligated to make a new offer to
CRLP, in accordance with this Section 3.5, before it shall be permitted to
consummate a sale of such Eliminated Property, or any part thereof.
(e) The closing of the purchase of Eliminated Property by
CRLP pursuant to this Section 3.5 shall take place within fifteen (15) days
following the delivery of the EP Acceptance Notice by CRLP to XXXX at the
offices of Pryor, Cashman, Xxxxxxx & Xxxxx located at 000 Xxxx Xxxxxx, Xxx Xxxx,
XX 00000, or at such other date, time or place as the
12
parties to the sale may agree. At such closing, XXXX shall sell, transfer and
deliver to CRLP full right, title and interest in and to such Eliminated
Property purchased by CRLP, free and clear of all liens, security interests or
adverse claims of any kind and nature, except for the Permitted Encumbrances,
and shall deliver to CRLP a deed, assignment of Ground Lease or assignment of
partnership interest, duly executed and acknowledged conveying, such Eliminated
Property sold to CRLP. Simultaneously with delivery of such deed, assignment of
Ground Lease or assignment of partnership interest, CRLP shall deliver to XXXX
an amount of cash or other consideration equal to the EP Offer Price as set
forth in the EP Offer Notice, equal to the EP Offer Price, in full payment of
the purchase price of the such Eliminated Property purchased by CRLP.
4. TITLE; MATTERS TO WHICH THIS EXCHANGE IS SUBJECT.
4.1 The Exchange Property is to be contributed to CRLP subject to
the following (collectively, the "PERMITTED ENCUMBRANCES"):
(a) The liens of real estate taxes, personal property
taxes, water charges, and sewer charges provided same are not due and payable,
but subject to adjustment as provided herein;
(b) the rights of those parties occupying space at any of
the Improvements (collectively, "TENANTS"), as tenants only;
(c) (i) those restrictions, covenants, agreements,
easements, matters and things affecting title to the Real Property as of the
date hereof and more particularly described in the title insurance policies
listed on SCHEDULE 4.1(C); annexed hereto and by this reference made a part
hereof; provided however, if CRLP discovers any exception on such title policies
which affects the value or marketability of the Real Property or materially
impairs the use of the Real Property for its current use, then such exception
shall not be deemed a Permitted Encumbrance and such exception shall be subject
to the provisions of Section 4.2(b); and such other easements, covenants and
restrictions which are entered into with the consent of CRLP after the date
hereof, such consent not to be unreasonably withheld, delayed or conditioned and
any additional title exceptions on the Title Commitments (as hereinafter
defined) not objected to by CRLP (the "ADDITIONAL TITLE EXCEPTIONS") in
accordance with Section 4.2 below;
(d) any and all laws, statutes, ordinances, codes, rules,
regulations, requirements, or executive mandates affecting the Real Property
including, without limitation, those related to zoning and land use, as of the
date hereof;
(e) the state of facts shown on the surveys listed on
SCHEDULE 4.1(E) for each of the individual properties comprising the Real
Property and any other state of facts which a recent and accurate survey of the
Real Property would actually show, provided same do
13
not materially impair the use of the Real Property as it is currently being used
and do not render title uninsurable at standard rates;
(f) the Service Contracts;
(g) any installment not yet due and payable of assessments
imposed after the date hereof and affecting the Real Property or any portion
thereof;
(h) any utility company rights, easements and franchises to
maintain poles, lines, wires, cables, pipes, boxes and other fixtures and
facilities in, over, under or upon the Real Property, provided same do not
impair in other than a DE MINIMUS manner the present use of the Real Property;
(i) prohibition against the interference with the natural
and unobstructed flow of any applicable brook crossing the Real Property or
other riparian rights, provided same does not materially impair the use of the
Real Property as it is currently being used and do not render title uninsurable
at standard rates;
(j) such matters as the Title Company shall be willing,
without special premium, to omit as exceptions to coverage including minor
variations between record lines and tax lot lines; and
(k) the lien of the Mortgages on those parcels of Real
Property encumbered by the Mortgages as of the date hereof (but on the terms and
conditions of this Agreement).
4.2 (a) CRLP has, prior to the date hereof, directed First
American Title Insurance Company ("FIRST AMERICAN") to prepare title insurance
searches and commitments for owner's title insurance policies for each of the
Real Properties (the "TITLE COMMITMENTS"). CRLP shall cause First American, or
such other or additional title insurance companies as may be selected by CRLP
(collectively, the "TITLE COMPANY"), to deliver to the Xxxx Contributors and its
counsel copies of the Title Commitments and the documents describing the title
exceptions shown on the Title Commitments (collectively, the "TITLE DOCUMENTS")
which are to be delivered to CRLP and its counsel. All Additional Title
Exceptions not objected to by CRLP shall be conclusively deemed to be acceptable
to CRLP and such items shall be deemed to be Permitted Encumbrances.
(b) If any defects, objections or exceptions in the title
to the Real Property appear in the Title Commitments (other than the Permitted
Encumbrances) which CRLP is not required to accept under the terms of this
Agreement, XXXX may, at its election, undertake to eliminate such unacceptable
defects, objections or exceptions, it being agreed that other than (i) judgments
against XXXX, (ii) mortgages or other liens which can be satisfied by payment of
a liquidated amount, other than the Mortgages, (iii) defects, objections or
exceptions which can be
14
removed by payments not to exceed $1,000,000 for each Real Property and not to
exceed $10,000,000 in the aggregate for all title defects, and (iv) payments to
the mortgagees which are currently required pursuant to existing loan documents
in order to cause the mortgagees to consent to Cali taking subject to the
Mortgages, and except as provided below, XXXX shall have no obligation to incur
any expense in connection with curing such defects, objections or exceptions.
XXXX, in its discretion, may adjourn the Closing for up to sixty (60) days in
order to eliminate unacceptable defects, objections or exceptions. Other than
the items described in (i)-(iv) above, which XXXX agrees to cure at its sole
cost and expense without regard to the cost thereof (other than as expressly set
forth in items (iii) and (iv)), if, after complying with the foregoing
requirements, XXXX is unable to eliminate all unacceptable defects, objections
or exceptions in accordance with the terms of this Agreement on or before such
adjourned date for the Closing, CRLP shall elect either (w) to terminate this
Agreement by notice given to the Xxxx Contributors in which event the provisions
of Section 22.2 shall apply, or (x) to accept title subject to such unacceptable
defects, objections or exceptions and receive no credit against or reduction of
the consideration to be given hereunder for the Exchange Property. XXXX agrees
and covenants that it shall not voluntarily place any encumbrances or
restrictions to title to any of the Exchange Properties from and after the date
of the first issuance of the Title Commitment for each Exchange Property. Cali
and CRLP agree that they shall conduct any due diligence with any governmental
entities with a view toward maintaining the confidentiality of the transaction
contemplated by this Agreement.
4.3 It shall be a condition to Closing that XXXX contribute and
convey, and that the Title Company insure, title to each Real Property conveyed
by deed or assignment of Ground Lease and title to each Real Property conveyed
through the contribution of the Contributed Interests, in the amount of the
Allocated Property Value thereof (at a standard rate for such insurance) in the
name of CRLP or its designees, after delivery of the Deeds, assignments of
Ground Leases or assignments of the Contributed Interests, by a standard 1992
ALTA Owners Policy, with such ALTA endorsements (including without limitation a
comprehensive owner's endorsement and a non-imputation endorsement, where
available, for each Real Property) as are available in each applicable state
where the Real Property is located and as required by CRLP attached, free and
clear of all liens, encumbrances and other matters, other than the Permitted
Encumbrances (the "TITLE POLICY"). The Title Company shall provide affirmative
insurance that any (i) Permitted Encumbrances have not been violated, and that
any future violation thereof will not result in a forfeiture or reversion of
title; (ii) CRLP's contemplated use of the Real Property will not violate the
Permitted Encumbrances; and (iii) the exception for taxes shall apply only to
the current taxes not yet due and payable. XXXX shall provide such affidavits
and undertakings as the Title Company insuring title to the Real Property may
reasonably require and shall cure all other defects and exceptions other than
the Permitted Encumbrances and as required pursuant to Section 4.2. The words
"insurable title" and "insurable" as used in this Agreement are hereby defined
to mean title which is insurable at standard rates (without special premium) by
the Title Company without exception other than the Permitted Encumbrances, and
standard printed policy exceptions.
15
4.4 Any unpaid taxes, water charges, sewer rents and assessments,
together with the interest and penalties thereon to a date not less than seven
(7) business days following the Closing Date (in each case subject to any
applicable apportionment), and any mortgages or other liens created by XXXX,
which XXXX is obligated to pay and discharge pursuant to the terms of this
Agreement, together with the cost of recording or filing of any instruments
necessary to discharge such liens and such judgments, shall be paid at the
Closing by XXXX. XXXX shall deliver to CRLP, on the Closing Date, instruments
in recordable form sufficient to discharge any such mortgages or other liens
which XXXX is obligated to pay and discharge pursuant to the terms of this
Agreement.
4.5 If the Title Commitments disclose judgments, bankruptcies or
other returns against other persons having names the same as or similar to that
of XXXX or the Contributed Entities, XXXX, on request, shall deliver to the
Title Company affidavits showing that such judgments, bankruptcies or other
returns are not against XXXX, the Contributed Entities or any affiliates. Upon
request by CRLP, XXXX shall deliver any affidavits and documentary evidence as
are reasonably required by the Title Company to eliminate the standard or
general exceptions on the ALTA form Owner's Policy. The Xxxx Contributors
further agree to deliver to the Title Company the requisite indemnities or
affidavits necessary for the Title Company to issue a non-imputation endorsement
for each Real Property, where available.
5. REPRESENTATIONS AND WARRANTIES OF XXXX.
5.1 In order to induce CRLP and Cali to perform as required
hereunder, XXXX hereby warrants and represents the following with respect to the
Exchange Property and the Option Properties:
(a) Each Xxxx Entity set forth in SCHEDULE 5.1(A) is a duly
organized and validly existing limited liability company organized under the
laws of the State set forth in SCHEDULE 5.1(A), is duly authorized to transact
business in the States set forth in SCHEDULE 5.1(A), has all requisite power and
authority to execute and deliver this Agreement and all other documents and
instruments to be executed and delivered by it hereunder, and except as set
forth on SCHEDULE 5.1(C) to perform its obligations hereunder and under such
other documents and instruments in order to contribute the Exchange Property in
accordance with the terms and conditions hereof. Each Xxxx Entity set forth in
SCHEDULE 5.1(A) is for federal income tax purposes either (i) taxed as a
partnership or (ii) disregarded as an entity separate from its owner. None of
the Xxxx Entities have filed, prior to the date hereof or will file prior to the
Closing Date, any election with any taxing authority to be taxed as a
corporation. All necessary actions of the members of the Xxxx Entities set
forth in SCHEDULE 5.1(A) to confer such power and authority upon the persons
executing this Agreement and all documents which are contemplated by this
Agreement on its behalf have been taken.
(b) Each Xxxx Entity set forth in SCHEDULE 5.1(B) is a duly
organized and validly existing limited partnership organized under the laws of
the State set forth in
16
SCHEDULE 5.1(B), is duly authorized to transact business in the State set forth
in SCHEDULE 5.1(B), has all requisite power and authority to execute and deliver
this Agreement and all other documents and instruments to be executed and
delivered by it hereunder, and except as set forth in SCHEDULE 5.1(C) to perform
its obligations hereunder and under such other documents and instruments in
order to contribute the Exchange Property in accordance with the terms and
conditions hereof. None of the Xxxx Entities have filed, prior to the date
hereof or will file prior to the Closing Date, any election with any taxing
authority to be taxed as a corporation. Each Xxxx Entity set forth in SCHEDULE
5.1(B) is taxed as a partnership for federal income tax purposes. All necessary
actions of the Xxxx Entities set forth in SCHEDULE 5.1(B) to confer such power
and authority upon the persons executing this Agreement and all documents which
are contemplated by this Agreement on its behalf have been taken.
(c) Except as set forth in SCHEDULE 5.1(C), this Agreement,
when duly executed and delivered, will be the legal, valid and binding
obligation of the Xxxx Contributors and the Xxxx Entities, enforceable in
accordance with the terms of this Agreement. Except as set forth in SCHEDULE
5.1(C), the performance by the Xxxx Contributors and the Xxxx Entities of their
duties and obligations under this Agreement and the documents and instruments to
be executed and delivered by them hereunder will not conflict with, or result in
a breach of, or default under, any provision of any of the organizational
documents of the Xxxx Entities or any agreements, instruments, decrees,
judgments, injunctions, orders, writs, laws, rules or regulations, or any
determination or award of any court or arbitrator, to which any Xxxx Contributor
or any Xxxx Entity is a party or by which its assets are or may be bound.
(d) Annexed hereto as SCHEDULE 5.1(D) is a true, complete
and correct schedule of all of the Leases as of July 31, 1997. Annexed hereto
as SCHEDULE 1.1(A)(II) is a true, complete and correct schedule of all of the
Ground Leases. The Leases are valid and bona fide obligations of the landlord
thereunder and, to XXXX'x knowledge, the tenants thereunder, and are in full
force and effect. The Ground Leases are valid and bona fide obligations of the
tenant thereunder and, to XXXX'x knowledge, the landlords thereunder, and are in
full force and effect. To XXXX'x knowledge, except as set forth in SCHEDULE
5.1(D), no defaults remain uncured pursuant to notices of default sent to any
Tenants and no condition exists which, solely with the passage of time or the
giving of notice or both, will become a default; XXXX has not received any
notices of default under the Leases or the Ground Leases; the Leases and the
Ground Leases constitute all of the leases, tenancies or occupancies affecting
the Real Property on the date hereof; all Tenants have commenced occupancy;
except as set forth in the Leases there are no agreements which confer upon any
Tenant or any other person or entity any rights with respect to acquiring all or
a portion of the Exchange Property, nor has any claim been asserted by any
Tenant in writing for an offset to its rent, nor is any Tenant currently
asserting, in writing, a concession, rebate, allowance or free rent.
(e) Annexed hereto as SCHEDULE 5.1(E) is a listing (THE
"RENT ROLL") of the following as of July 31, 1997, which is true, complete and
correct in all material respects for the Exchange Property: (i) the name of each
Tenant; (ii) the fixed rent actually being
17
collected; (iii) the expiration date or status of each Lease (including all
rights or options to renew); (iv) the Security Deposit, if any; (v) whether
there is any guaranty of a Tenant's obligations from a third party, and if so
the nature of said guaranty; (vi) arrangements under which any Tenant is
occupying space on the date hereof or will in the future, occupy such space;
(vii) any written notices given by any Tenant of an intention to vacate space in
the future; (viii) the base year(s) and base year amounts for all items of rent
or additional rent billed to each Tenant on that basis; and (ix) any arrearages
of any Tenant beyond thirty (30) days.
(f) Annexed hereto as SCHEDULE 5.1(F) is a true and
complete estimated pro-forma rent roll (the "PRO FORMA RENT ROLL") dated as of
January 1, 1998.
(g) There are no service contracts, equipment leases, union
contracts, employment agreements or other agreements applicable to employees of
XXX or affecting the Exchange Property or the operation thereof, except the
Service Contracts and the contracts set forth on SCHEDULE 5.1(G) annexed hereto.
To XXXX'x knowledge, all of the Service Contracts are and will on the Closing
Date be unmodified (except in the ordinary course of business) and in full force
and effect without any material default or claim of material default by the Xxxx
Entities. All sums presently due and payable by the Xxxx Entities under the
Service Contracts have been fully paid and all sums which become due and payable
between the date hereof and the Closing Date shall be fully paid by XXXX within
customary time periods, not to exceed forty-five (45) days from the receipt of
an invoice by XXXX. There are no employees of any Xxxx Entity, XXX, or any
affiliate thereof working at or in connection with the Real Property pursuant to
any of the Service Contracts and contracts set forth on SCHEDULE 5.1(G).
(h) Except as set forth on SCHEDULE 5.1(H) annexed hereto
and except as covered by insurance, there are no actions, suits, labor disputes,
litigation or proceedings currently pending or, to the knowledge of XXXX,
threatened against or related to XXXX, the Xxxx Entities (with respect to the
Exchange Property being contributed) or XXX or to all or any part of the
Exchange Property or the Option Properties, the environmental condition thereof,
or the operation thereof. XXXX shall be permitted to continue to prosecute
suits set forth on SCHEDULE 5.1(H) and may initiate suits or actions against
former tenants who are no longer in occupancy at any of the Real Property.
(i) Except as set forth on SCHEDULE 5.1(I) annexed hereto,
XXXX has received no written notice and has no knowledge of (i) any pending or
contemplated annexation or condemnation proceedings, or private purchase in lieu
thereof, affecting or which may affect the Real Property, or any part thereof,
(ii) any proposed or pending proceeding to change or redefine the zoning
classification of all or any part of the Real Property, (iii) any proposed or
pending special assessments affecting the Real Property or any portion thereof,
(iv) any penalties or interest due with respect to real estate taxes assessed
against the Real Property and (v) any proposed change(s) in any road or grades
with respect to the roads providing a means of ingress and egress to the Real
Property. XXXX agrees to furnish CRLP with a copy of any such notice received
within two (2) business days after receipt.
18
(j) XXXX has provided CRLP with the reports set forth on
SCHEDULE 5.1(J) annexed hereto, which constitute all third-party reports in
XXXX'x possession or under its control related to the physical condition of the
Real Property and the Option Properties which have been prepared within the last
four (4) years.
(k) Except as set forth on SCHEDULE 5.1(K) annexed hereto,
XXXX has no knowledge of any notices, suits, or judgments relating to any
violations (including environmental) of any laws, ordinances or regulations
affecting the Real Property or the Option Properties, or any violations or
conditions that may give rise thereto, and has no reason to believe that any
agency, board, bureau, commission, department or body of any municipal, county,
state or federal governmental unit, or any subdivision thereof, having,
asserting or acquiring jurisdiction over all or any part of the Real Property or
the Option Properties or the management, operation, use or improvement thereof
(collectively, the "GOVERNMENTAL AUTHORITIES") contemplates the issuance
thereof, and there are no outstanding orders, judgments, injunctions, decrees or
writ of any Governmental Authorities against or involving XXXX, the Real
Property or the Option Properties.
(l) There are no employees of any Xxxx Entity, XXX or any
affiliate thereof working at or in connection with the Real Property except as
set forth on SCHEDULE 5.1(L). Said Schedule also sets forth a true and complete
list of all employees presently employed by the Xxxx Entities, XXX or any
affiliate thereof working at the Real Property and their respective union
affiliations (if any), accrued vacation days and other fringe benefits
(including social security, unemployment compensation, employee disability
insurance, accrued sick days, "welfare" and pension fund contributions, payments
and deposits, if any).
(m) To the knowledge of XXXX, the Xxxx Entities have
performed all of the material obligations and observed all of the material
covenants required of each landlord under the terms of the Leases. Except as
set forth on SCHEDULES 5.1(M-1) and 5.1(M-2) annexed hereto, all work,
alterations, improvements or installations required to be made for or on
behalf of all Tenants under all of the Leases have or will prior to Closing
in all respects been carried out, performed and complied with, and there is
no agreement with any Tenant for the performance of any work to be done in
the future other than that which is required pursuant to its Lease. No work
has been performed at any Exchange Property which would require an amendment
to the certificate of occupancy for such Exchange Property for which an
amendment has not been obtained or is in the process of being obtained, and
any and all work performed at the Exchange Property to the date hereof and to
the Closing Date has been and will be in accordance with the rules, laws and
regulations of all applicable authorities. All undisputed bills and claims
for labor performed and materials furnished to or for the benefit of the
Exchange Property arising prior to the Closing Date will be paid in full by
XXXX within customary time periods, not to exceed forty-five (45) days from
the receipt of an invoice by XXXX. To the extent any bills and claims for
labor performed and materials furnished to or for the benefit of the Exchange
Property prior to the Closing Date are disputed, XXXX shall commence any
actions related to such bills and
19
claims promptly, such commencement being no later than forty-five (45) days
from the receipt of an invoice by XXXX, and shall diligently prosecute same
to its conclusion. If such action results in either (i) a lien on the
Exchange Property which lien remains unbonded for thirty (30) days, or (ii)
any vendor providing unique services or services at a below market price
refusing to service the Real Property, XXXX shall cause payment of same to be
made to remedy same within ten (10) days thereafter. Except as set forth on
SCHEDULES 5.1(M-1) and 5.1(M-2) annexed hereto, all leasing commission
obligations affecting the Exchange Property shall have been paid prior to
Closing. The respective obligations of XXXX and CRLP with respect to capital
expenditures, tenant improvement obligations, tenant fit-ups and leasing
commissions relating to the Exchange Property are set forth in Section 13.
(n) XXXX has not made a general assignment for the benefit
of creditors, filed any voluntary petition in bankruptcy or suffered the filing
of any involuntary petition by XXXX'x creditors, suffered the appointment of a
receiver to take possession of all, or substantially all, of XXXX'x assets,
suffered the attachment or other judicial seizure of all, or substantially all,
of XXXX'x assets, admitted in writing its inability to pay its debts as they
come due or made an offer of settlement, extension or composition to its
creditors generally.
(o) Except as set forth on SCHEDULE 5.1(O), the Personal
Property will on the Closing Date be owned by the Xxxx Entities free and clear
of any conditional bills of sale, chattel mortgages, security agreements or
financing statements or other security interests of any kind, other than liens
created by CRLP.
(p) (i) Each Xxxx Contributor has or will have at
Closing legal and beneficial title to one-hundred (100%) percent of the
Contributed Interests to be contributed hereunder, free of all liens and
encumbrances whatsoever. Each Xxxx Contributor has the power and authority to
own its respective Contributed Interests. The contribution of the Contributed
Interests pursuant to this Agreement is or will be authorized and within the
power of each Xxxx Contributor on or prior to the Closing.
(ii) Each Xxxx Entity has the power and authority to
own its respective Property and to conduct and transact its partnership/LLC
business.
(q) Except as set forth on SCHEDULE 5.1(Q), there are no
agreements relating to the Exchange Property which generate revenue or income,
other than the Leases.
(r) All of the commercial office-service/office properties
actually controlled, directly or indirectly, and legally or beneficially, by
XXXX or any one or more of them is included in the Exchange Property other than
the Option Properties, the Eliminated Property and the office-service/office
properties set forth on SCHEDULE 5.1(R) (collectively, the "EXCLUDED
PROPERTIES").
20
(s) The Xxxx Contributors have no knowledge that any part
of the improved portion of the Real Property or the Option Properties has been
designated as a wetland, or any word of similar purport or meaning, under the
Federal Water Pollution Control Act, 33 U.S.C. Section 1251 ET SEQ., or any
other applicable federal, state, county or municipal statute, ordinance, rule,
regulation, order or code.
(t) There are no aboveground or underground storage tanks
or vessels which contain any Contaminants at the Real Property or the Option
Properties, regardless of whether such tanks or vessels are regulated tanks or
vessels or not, except as set forth on SCHEDULE 5.1(T).
(u) Except as set forth in SCHEDULE 5.1(U), the Xxxx
Contributors have no knowledge of outstanding requirements or recommendations by
(i) the insurance company(s) currently insuring the Real Property; (ii) any
board of fire underwriters or other body exercising similar functions, or (iii)
the holder of any mortgage encumbering any of the Real Property, which require
or recommend any repairs or work to be done on the Real Property of a material
nature.
(v) The combined financial statements, including the income
and expense statements and the balance sheets of the Xxxx Entities and their
affiliates, excluding only those assets, liabilities and operations not
contemplated to be contributed pursuant to this Agreement relating to the
ownership and operation of the Exchange Property and the related combined
statement of income, partners' capital and cash flows, including the footnotes
thereto (the "PROPERTY FINANCIALS") as of and for the years ending December 31,
1994, 1995 and 1996 by Price Waterhouse LLP and for the period of January 1,
1997 through June 30, 1997 (or the most recent fiscal quarter ending date if
later), and reviewed by such accountants (it being understood that such audit or
review relied upon the reports of certain other auditors with respect to the
Patriot Entities), fairly present the combined financial position of the Xxxx
Entities relating to the Exchange Property as at such dates and the combined
results of operations and combined cash flows of the Xxxx Entities relating to
the ownership and operation of the Exchange Property for such respective
periods, in each case in accordance with generally accepted accounting
principles ("GAAP") consistently applied for the periods covered thereby. The
Property Financials from January 1, 1997 through June 30, 1997 (or the most
recent fiscal quarter ending date if later) are subject to the normal year-end
adjustments described in SCHEDULE 5.1(V). There has been no material adverse
change in the financial condition of the Exchange Property between June 30, 1997
and the date hereof and same shall be true and correct as of the Closing Date.
(w) (i) Annexed hereto as SCHEDULE 5.1(W)(I) is a true
and complete list of all Xxxx Entities' and PAM's collective bargaining
agreements, employment and consulting agreements, non-competition agreements,
executive compensation plans, bonus plans, directors' fee arrangements, deferred
compensation agreements, employee pension plans or retirement plans, employee
profit sharing plans, 401(k) savings plans, multiemployer plans,
21
employee stock purchase and stock option plans, employee welfare plans,
severance plans, group life insurance, hospitalization insurance or other
similar plans or arrangements (either written or oral, but only to the extent an
oral plan provides material benefits) providing for benefits to any employees of
the Xxxx Entities or XXX who are offered employment with Xxxx-Xxxx as of the
Closing Date and who accept the offer ("NEW CALI EMPLOYEES") or with respect to
which a New Cali Employee is a party.
(ii) The Xxxx Entities have complied and currently
are in compliance in all material respects, both as to form and operation, with
the applicable provisions of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and the Internal Revenue Code of 1986, as amended
(the "CODE"), with respect to the 401(k) Savings Plan (the "XXXX 401(K) PLAN").
With respect to the Xxxx 401(k) Plan, XXXX has supplied CRLP with the most
recent determination letter issued by the Internal Revenue Service. XXX has
complied and currently is in compliance in all material respects, both as to
form and operation, with the applicable provisions of ERISA and the Code, with
respect to its 401(k) Savings Plan (the "XXX 401(K) PLAN"). With respect to the
XXX 401(k) Plan, XXX has supplied CRLP with the most recent determination letter
issued by the Internal Revenue Service. With respect to collective bargaining
agreements which cover New Cali Employees, XXXX and XXX have supplied CRLP with
a true and complete copy of each collective bargaining agreement currently in
effect including all amendments thereto.
(x) The Xxxx Group beneficially owns, either directly or
indirectly, after applying the attribution rules set forth on SCHEDULE 26.2(V)
in the aggregate, zero (0) shares of Common Stock.
(y) (i) XXXX does not own or operate any property which
any Governmental Authority has demanded in writing, addressed to and received by
XXXX or any of its affiliates, counsel or agents, be cleaned up or
environmentally remediated and which has not been cleaned up or environmentally
remediated.
(ii) Except as disclosed in SCHEDULE 5.1(Y)(II), to
the Xxxx Contributors' knowledge, no Contaminants have been Discharged which
relate to the Real Property and the Option Properties which would allow a
Governmental Authority to demand that a cleanup be undertaken.
(iii) To the knowledge of the Xxxx Contributors, no
Section 104(e) informational request has been received by XXXX issued pursuant
to CERCLA, with respect to the Real Property or the Option Properties.
(iv) To the knowledge of the Xxxx Contributors, all
pre-existing aboveground and underground storage tanks and vessels, if any, at
the Real Property and the Option Properties have been removed and their contents
disposed of in accordance with and pursuant to all applicable Environmental
Laws, except as set forth on SCHEDULE 5.1(Y)(IV).
22
(v) To the knowledge of the Xxxx Contributors, there is no
asbestos or asbestos containing material requiring remediation under
Environmental Laws on the Real Property or the Option Properties, except as set
forth on SCHEDULE 5.1(Y)(V).
(vi) To the knowledge of the Xxxx Contributors, all
transformers and capacitors containing polychlorinated biphenyls ("PCBS") , and
all "PCB Items", as defined in 40 CFR, Section 761.3, located on or affecting
the Real Property or the Option Properties, are identified in SCHEDULE
5.1(Y)(VI) and are in compliance with all Environmental Laws.
(vii) To the knowledge of XXXX, the Xxxx Entities are in
possession of all material certificates, licenses and permits (the "PERMITS"),
including, without limitation, environmental Permits, required to operate the
Real Property and the Option Properties, except as set forth in SCHEDULE
5.1(Y)(VII). To the Xxxx Contributors' knowledge, there is no violation of any
Environmental Laws with respect to any Permits, all Permits are in full force
and effect, are transferable with the Exchange Property or the Option
Properties, as the case may be, without additional payment by CRLP, and shall,
upon closing, be transferred to CRLP by XXXX.
(viii) Except as set forth in SCHEDULE 5.1(Y)(VIII), the Real
Property and Option Properties have not been used during the period of the
respective Xxxx Entities' ownership, or to the knowledge of the Xxxx
Contributors, previously, as a transfer station, incinerator, resource recovery
facility, landfill or other similar facility for receiving or treating, storing
or disposing of waste, garbage, refuse and other discarded materials resulting
from, without limitation, industrial, commercial, agricultural, domestic and
community activities, including without limitation sanitary, hazardous, medical,
special or other waste.
(ix) XXXX has not knowingly permitted, and shall not
knowingly permit any person or entity to engage in any activity on the Real
Property or the Option Properties, in violation of Environmental Laws.
(x) There are no engineering or institutional controls
designed to address the Discharge of Contaminants or required by Environmental
Laws or Governmental Authorities at any Real Property or any of the Option
Properties, including without limitation any deed notice, declaration of
environmental restriction, groundwater classification exception area, well
restriction area, or other notice or use limitations pursuant to Ariz. Stat.
Xxx. Section 49-922, Cal. Health & Safety Code Section 25159, Fla. Stat. Xxx.
Section 403.704, Iowa Code Xxx. Section 455B.481, Neb. Rev. Stat. Section
81-1505, N.J. Stat. Xxx. Section 13:1E-56, N.J. Stat. Xxx. Section 58:10B-13,
N.Y. Envtl. Conserv. Law Section 27-0918, 35 Pa. Cons. Stat. Xxx. Section
6018.104, 35 Pa. Cons. Stat. Xxx. Section 6018.405, 35 Pa. Cons. Stat. Xxx.
Section 6020.512, Tex. Health & Safety Code Xxx. Section 361.017 and the
regulations promulgated thereunder, as well as any other applicable federal,
state, county or municipal statute, ordinance, rule, regulation, order or code.
23
(xi) There are no federal or state liens, as referenced
under CERCLA or Ariz. Rev. Stat. Xxx. Section 49-295, Cal. Water Code Section
13305, Cal. Health & Safety Code Section 25365.6, Fla. Stat. Xxx. Section
376.308, Iowa Code Xxx. Sections 455B.396, N.J. Stat. Xxx. Section 13:1K-9.3,
N.J. Stat. Xxx. Section 58:10-23.11f(f), N.Y. Nav. Law Section 181-a to -e, 35
Pa. Cons. Stat. Xxx. Section 6020.509, 35 Pa. Cons. Stat. Xxx. Section 6021.702,
Tex. Health & Safety Code Xxx. Section 361.194 and the regulations promulgated
thereunder, as well as any other applicable Environmental Law that have attached
to the Real Property or Option Properties.
(xii) XXXX has provided CRLP with all environmental site
assessments, investigations, and documents related to Contaminants and to prior
operations which operations or Contaminants are reasonably likely to have
impacted the environment, and all other material "Environmental Documents", (as
that term is defined below) relating to the physical condition of the Real
Property and the Option Properties in their possession or under their control
and shall continue to do so after the execution of this Agreement promptly upon
their receipt.
(xiii) For purposes of this Agreement, the following words
shall have the respective meaning set forth below:
(A) "CONTAMINANTS" shall include, without
limitation, any regulated substance, toxic substance, hazardous substance,
hazardous waste, pollution, pollutant or contaminant, as defined or referred to
in the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section
6901 ET SEQ.; the Comprehensive Environmental Response, Compensation and
Liability Act, as amended, 42 U.S.C. Section 9601 ET SEQ. ("CERCLA"); the
Federal Water Pollution Control Act, as amended, 33 U.S.C. Section 1251 ET SEQ.;
together with any amendments thereto, regulations promulgated thereunder and all
substitutions thereof, as well as words of similar purport or meaning referred
to in any other applicable federal, state, county or municipal environmental
statute, ordinance, rule or regulation, including, without limitation, asbestos,
polychlorinated biphenyls, urea formaldehyde and petroleum products and
petroleum-based derivatives.
(B) "DISCHARGE" shall mean the releasing, spilling,
leaking, leaching, disposing, pumping, pouring, emitting, emptying, treating or
dumping of Contaminants at, into, onto or from the Real Property or the Option
Properties, as the case may be, regardless of whether the result of an
intentional or unintentional action or omission.
(C) "ENVIRONMENTAL DOCUMENTS" shall mean all
environmental documentation in the possession or under the control of XXXX
concerning the Real Property or the Option Properties, as the case may be, or
their environs, including, without limitation, all sampling plans, cleanup
plans, preliminary assessment plans and reports, site investigation plans and
reports, remedial investigation plans and reports, remedial action plans and
reports, or the equivalent, sampling results, sampling result reports, data,
diagrams, charts,
24
maps, analysis, conclusions, quality assurance/quality control documentation,
correspondence to or from any Governmental Authority, submissions to any
Governmental Authority and directives, orders, approvals and disapprovals issued
by any Governmental Authority.
(D) "ENVIRONMENTAL LAWS" means each and every
applicable federal, state, county or municipal statute, ordinance, rule,
regulation, order, code, directive or requirement of any Governmental Authority
in any way related to Contaminants.
(z) XXXX and each of their affiliated entities have paid
all Taxes (as hereinafter defined) due and payable prior to the Closing and
timely filed all returns and reports required to be filed prior to the Closing
with respect to its business and the ownership and operation of the Exchange
Property and Option Properties (by it or any predecessor entity) for which CRLP
could be held liable or a claim made against the acquired property. Each such
tax return or report is complete and accurate in all material respects. XXXX
and each of their affiliated entities either has paid or will pay, or has
provided or will provide for a cash reserve, for all Taxes related to the period
ending on the Closing Date but required to be paid after the Closing Date with
respect to its business and the operation of the Exchange Property and the
Option Properties (by it or any predecessor entity) for which CRLP could be held
liable or a claim made against the acquired property. True and complete copies
of all Federal, State and local tax returns and reports that have been filed by
the Xxxx Entities (or a predecessor entity) for 1994, 1995, 1996 and 1997 and
all written communications with a taxing authority relating thereto have or
will, upon request, be delivered to CRLP during the Cali Inspection Period. To
XXXX'x knowledge, no claim has been made by a taxing authority in a jurisdiction
in which the Xxxx Entities do not file tax returns. Except as set forth in
SCHEDULE 5.1(Z), there are no audits or other proceedings by any taxing
authority pending or, to the knowledge of XXXX and each of its affiliated
entities, threatened with respect to the Taxes resulting from the Xxxx Entities'
business and the ownership and operation of the Exchange Property and the Option
Properties (by it or any predecessor entities) for which CRLP could be held
liable or a claim made against the acquired property and no agreement extending
the period for assessment and collection has been executed with respect thereto.
To the knowledge of XXXX and each of its affiliated entities, no assessment of
Taxes is proposed against the Xxxx Entities (including any predecessor
entities), the Exchange Property or the Option Properties. There are no
agreements or waivers extending the statutory period of limitations applicable
to any return or report filed or required to be filed by XXXX or any of
affiliated entities with respect to any Taxes. No Xxxx Entity is a party to,
and has no liability under (including liability with respect to a predecessor
entity), any indemnification, allocation or sharing agreement with respect to
Taxes.
(aa) Annexed hereto as SCHEDULE 5.1(AA) is a listing of the
following, which is true, complete and correct in all material aspects for each
Real Property contributed to CRLP: (i) its adjusted basis for federal income tax
purposes as of June 30, 1997; (ii) the date placed in service; (iii) the cost
recovery method; and (iv) the remaining useful life for federal income tax
purposes.
25
(bb) Except as set forth in SCHEDULE 5.1(BB), to XXXX'x
knowledge no maintenance association affiliated with the Real Property (i) is
delinquent in any payment to any contractor performing services on the Real
Property, (ii) has failed to collect any monthly maintenance premiums or
assessment from any member, (iii) has borrowed any money, (iv) has committed or
is in the process of performing any work in the nature of a capital expenditure
program relating to any Building, (v) has failed to file any local, state or
federal tax return, or (vi) is currently involved in any form of litigation,
mediation, arbitration or is subject to any judgment or suit of any nature.
(cc) No representation or warranty made by XXXX contained in
this Agreement, and no statement contained in any document, certificate,
Schedule or Exhibit furnished or to be furnished by or on behalf of XXXX to CRLP
or any of its designees or affiliates pursuant to this Agreement (including,
without limitation, any information supplied in writing by XXXX to CRLP or Cali
for inclusion in the proxy statement to solicit Cali's stockholder approval for
the transactions contemplated herein) contains or will contain any untrue
statement of a material fact (taking into account any knowledge, materiality or
other similar qualifiers contained therein) or, to XXXX'x knowledge, omits or
will omit to state any material fact necessary, in light of the circumstances
under which it was or will be made, in order to make the statements herein or
therein not misleading or necessary in order to fully and fairly provide the
information required to be provided in any such document, certificate, Schedule
or Exhibit.
(dd) As used throughout this Agreement, the phrases "to
XXXX'x knowledge," "to the knowledge of XXXX", "to the Xxxx Contributors'
knowledge" or any similar derivation thereof, shall mean the actual knowledge of
Xxxxxxx Xxxx, Xxxxxxxxx Xxxx, Xxxxx Xxxx, Xxxxx Xxxx (collectively, the "XXXX
GROUP"), Xxxxx Xxxxx and Xxxxxxxx Xxxxx , after due inquiry and investigation.
(ee) XXXX is not a "foreign person" within the meaning of
Section 1445(f)(3) of the Code, and XXXX will furnish to CRLP, if requested by
CRLP, an affidavit in form satisfactory to CRLP confirming the same.
(ff) Other than as specifically set forth in the Leases and
the property questionnaires, (i) the only services provided by XXXX (or any
other Person acting as lessor or landlord for any of the Real Property) to the
Tenants of the Real Properties are listed on SCHEDULE 5.1(FF)(I); (ii) except as
set forth in SCHEDULE 5.1(FF)(II), no Tenant pays rent based on the income or
profits of any person; and (iii) except as set forth in SCHEDULE 5.1(FF) (III),
there is no agreement with any Tenant pursuant to which more than fifteen (15%)
percent of the total rent payable by such Tenant for both real and personal
property is attributable to personal property (as determined in accordance with
Section 856(d)(i)(C) of the Code).
(gg) Except as set forth on SCHEDULE 5.1(GG), no Xxxx Entity
has any material liabilities or obligations of any nature (whether absolute,
accrued, contingent or
26
otherwise) except for (a) liabilities or obligations reflected or reserved
against in its June 30, 1997 unaudited consolidated balance sheet, (b)
liabilities and obligations relating to outstanding leases that are not required
to be disclosed under GAAP, (c) current liabilities incurred in the ordinary
course of business since the date of such balance sheet and (d) the Mortgages.
5.2 In order to induce Cali and CRLP to issue the Xxxx Common
Units, the Preferred Units and the Warrants (collectively, the "XXXX
SECURITIES"), XXXX hereby acknowledges its understanding that the issuance of
the Xxxx Common Units, the Preferred Units and the Warrants is intended to be
exempt from registration under the Securities Act of 1933, as amended, and the
rules and regulations in effect thereunder (the "ACT"). In furtherance thereof,
XXXX represents and warrants to CRLP to as follows:
(a) The Xxxx Unit Holders, the Preferred Unit Holders and
the Warrant Holders (collectively, the "XXXX SECURITY HOLDERS") are acquiring
the Xxxx Securities, solely for their own account for the purpose of investment
and not as a nominee or agent for any other person and not with a view to, or
for offer or sale in connection with, any distribution of any thereof. The Xxxx
Security Holders agree and acknowledge that they are not permitted to offer,
transfer, sell, assign, pledge, hypothecate or otherwise encumber or in any
manner dispose of (each a "TRANSFER") any of the Xxxx Securities except as
provided in this Agreement and the Agreement of Limited Partnership of CRLP as
amended through the Closing Date and as it may be amended in the future in
accordance with its terms (the "OP AGREEMENT").
(b) The Xxxx Security Holders are knowledgeable,
sophisticated and experienced in business and financial matters; the Xxxx
Security Holders fully understand the limitations on Transfer described in this
Agreement and the OP Agreement. The Xxxx Security Holders are able to bear the
economic risk of holding the Xxxx Securities for an indefinite period and are
able to afford the complete loss of their investment in the Xxxx Securities; the
Xxxx Security Holders have received and reviewed the OP Agreement and copies of
the documents filed by Cali since its inception under the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT"), and all registration statements
and related prospectuses and supplements filed by Cali and declared effective
under the Securities Act of 1933, as amended, since its inception (collectively,
the "SEC DOCUMENTS") and have been given the opportunity to obtain any
additional information or documents and to ask questions and receive answers
about such documents, Cali and CRLP and the business and prospects of Cali and
CRLP which Xxxx Security Holders deem necessary to evaluate the merits and risks
related to its investment in the Xxxx Securities; and the Xxxx Security Holders
understand and have taken cognizance of all risk factors related to the purchase
of the Xxxx Securities.
(c) The Xxxx Security Holders acknowledge that they have
been advised that (i) except as permitted by this Agreement or the OP Agreement,
the Xxxx Securities must be held indefinitely, and the Xxxx Security Holders
will continue to bear the economic risk of the investment in the Xxxx
Securities, unless they are redeemed, converted or exercised
27
pursuant to the OP Agreement or are subsequently registered under the Act or an
exemption from such registration is available, (ii) it is not anticipated that
there will be any public market for the Units at anytime, (iii) Rule 144
promulgated under the Act may not be available with respect to the sale of any
securities of CRLP (and that upon redemption of the Xxxx Common Units and the
Underlying Units (as defined in Section 18.4) and upon exercise of the Warrants
for Common Units, a new holding period under Rule 144 may commence), and CRLP
has made no covenant, and makes no covenant, to make Rule 144 available with
respect to the sale of any securities of CRLP (although Cali and CRLP have
agreed to register the Common Stock underlying all of the securities issued to
XXXX hereunder pursuant to the Registration Rights Agreement), (iv) a
restrictive legend as set forth in Section 5.4(a) below shall be placed on the
certificates or instruments representing the Xxxx Securities, and (v) a notation
shall be made in the appropriate records of CRLP indicating that the Xxxx
Securities are subject to restrictions on transfer.
(d) The Xxxx Security Holders also acknowledge that (i) the
redemption, conversion or exercise of the Xxxx Securities into shares of Common
Stock is subject to certain restrictions contained in the OP Agreement and in
Section 18 of this Agreement; and (ii) the shares of said Common Stock which may
be received upon such a redemption may, under certain circumstances, be
restricted securities and be subject to limitations as to transfer, and
therefore subject to the risks referred to in Section 5.2(c) above.
Notwithstanding anything herein or in the OP Agreement to the contrary, the Xxxx
Security Holders hereby acknowledge and agree and covenant that they may not and
will not (i) exercise the Redemption Rights (as defined in the OP Agreement)
until after the date which is one (1) year from the Closing Date with respect to
the Xxxx Common Units and Common Units received pursuant to the conversion of
Series A Preferred Units; (ii) exercise the Redemption Rights until after the
date which is three (3) years from the Closing Date with respect to Common Units
received pursuant to the conversion of Series B Preferred Units (with the
exception of Common Units received pursuant to the conversion of the Series B
Preferred Units which may pass to an estate as a result of a death occurring
after the Closing Date (the "ESTATE UNITS"), as to which Redemption Rights may
be exercised after the first anniversary of the Closing Date); and (iii)
exercise the Warrants until a date which is one (1) year after the Closing Date.
(e) Each of the Xxxx Security Holders is an "accredited
investor" (as such term is defined in Rule 501 (a) of Regulation D under the
Act) and each Xxxx Security Holder has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of the prospective investment.
5.3 All representations and warranties made by XXXX in this
Agreement shall survive the Closing Date for a period of one (1) year, except
that the representations and warranties set forth in clauses (a), (b), (c) and
(z) of Section 5.1 shall survive the Closing Date for the applicable period of
the statute of limitations (unless otherwise specified herein), and shall not be
merged in the delivery of the Deed, assignment of Ground Lease or the Assignment
of Contributed Interests. Notwithstanding the foregoing, to the extent that a
Tenant shall certify
28
in its Estoppel Certificate as to any of the matters which are contained in the
representations and warranties made by XXXX in Section 5.1(e) of this Agreement,
then XXXX'x representations and warranties as to such matters shall terminate.
XXXX agrees to indemnify and defend CRLP, and to hold CRLP harmless, from and
against any and all claims, liabilities, losses, deficiencies and damages as
well as reasonable expenses (including attorney's, consulting and engineering
fees), and interest and penalties related thereto, incurred by CRLP, by reason
of or resulting from any breach, inaccuracy, incompleteness or nonfulfillment of
the representations, warranties, covenants and agreements of XXXX contained in
this Agreement to the extent same was not actually known at Closing by any
senior officer of Cali or CRLP, up to a maximum liability of $50,000,000 except
that such maximum liability is subject to the provisions of Section 5.7. In
addition, CRLP shall not have a right to bring a claim against XXXX by virtue of
any of the representations or warranties being false or misleading unless (i)
such claim is brought on or prior to the date through which such representation
or warranty survives, (ii) and until notice of the false or misleading
representation or warranty has been given to a Xxxx Contributor and a Xxxx
Contributor has had a reasonable opportunity to cure same and (iii) the
aggregate damages to CRLP resulting from such false, misleading or untrue
representations and warranties are reasonably expected to exceed $1,500,000, but
thereafter CRLP may bring a claim against XXXX for the entire amount of its
aggregate damages up to $50,000,000. The MK Contributors and MK Entities shall
only be liable for any damages hereunder related to such Exchange Property owned
by them and such liability shall be joint and several among the MK Contributors
and the MK Entities. The Patriot Contributors and the Patriot Entities shall
only be liable for any damages hereunder with respect to any Exchange Property
owned by them and such liability shall be joint and several among the Patriot
Contributors and the Patriot Entities.
5.4 (a) The Xxxx Unit Holders hereby acknowledges that each
Unit Certificate representing the Xxxx Common Units shall bear the following
legend:
"THE UNITS REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT MAY NOT BE TRANSFERRED,
SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS SUCH
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION COMPLIES
WITH THE PROVISIONS OF THE AMENDED AND RESTATED PARTNERSHIP AGREEMENT DATED AS
OF JANUARY 16, 1997 AS AMENDED AS OF _______________ __, 1997 (A COPY OF WHICH
IS ON FILE WITH THE OPERATING PARTNERSHIP). EXCEPT AS OTHERWISE PROVIDED IN
SUCH AGREEMENT, NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION OF THE UNITS REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT (A)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR (B) IF THE OPERATING PARTNERSHIP HAS BEEN
FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL FOR THE HOLDER THAT SUCH
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT
FROM THE PROVISIONS OF SECTION 5 OF THE ACT AND THE RULES AND REGULATIONS IN
EFFECT THEREUNDER. IN ADDITION, THE
29
UNITS ARE SUBJECT TO THE PROVISIONS OF SECTION 18.1 OF A CERTAIN CONTRIBUTION
AND EXCHANGE AGREEMENT DATED __________________ ___, 1997 (A COPY OF WHICH IS ON
FILE WITH THE OPERATING PARTNERSHIP)."
(b) The Xxxx Unit Holders shall continue to hold legal and
beneficial title (subject to the permitted activities in clauses (A) and (B) of
Section 18.5 hereof and transfers to Permitted Transferees as defined therein)
to the Xxxx Common Units for a period of one (1) year following the Closing (the
"REPRESENTATION HOLDING PERIOD").
5.5. (a) The Preferred Unit Holders hereby acknowledge that the
certificates representing the Series A Preferred Units and the Series B
Preferred Units shall bear the following legend:
"THE PREFERRED UNITS REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF
UNLESS SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION COMPLIES WITH THE PROVISIONS OF THE AMENDED AND RESTATED PARTNERSHIP
AGREEMENT DATED AS OF JANUARY 16, 1997 AS AMENDED AS OF ________________ ___,
1997 (A COPY OF WHICH IS ON FILE WITH THE OPERATING PARTNERSHIP). EXCEPT AS
OTHERWISE PROVIDED IN SUCH AGREEMENT, NO TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION OF THE PREFERRED UNITS REPRESENTED BY THIS
CERTIFICATE MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR (B) IF
THE OPERATING PARTNERSHIP HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF
COUNSEL FOR THE HOLDER THAT SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF
THE ACT AND THE RULES AND REGULATIONS IN EFFECT THEREUNDER. IN ADDITION, THE
PREFERRED UNITS ARE SUBJECT TO THE PROVISIONS OF SECTION 18.1 OF A CERTAIN
CONTRIBUTION AND EXCHANGE AGREEMENT DATED __________________ ___, 1997 (A COPY
OF WHICH IS ON FILE WITH THE OPERATING PARTNERSHIP)."
(b) The Preferred Unit Holders shall continue to hold legal
and beneficial title to the Preferred Units (or if such Preferred Units have
been converted, the Common Units received pursuant to such conversion) for the
Representation Holding Period (subject to the permitted activities in clauses
(A) and (B) of Section 18.5 hereof and transfers to Permitted Transferees as
defined therein).
(c) The Warrant Holders shall continue to hold legal and
beneficial title to the Warrants for the Representation Holding Period (subject
to the permitted activities in
30
clauses (A) and (B) of Section 18.5 hereof and transfers to Permitted
Transferees as defined therein).
5.6 XXXX acknowledges that it is not in a significantly disparate
bargaining position with respect to CRLP in connection with the transaction
contemplated by this Agreement and that XXXX was represented by legal counsel in
connection with this transaction.
5.7 Notwithstanding anything to the contrary contained in Section
5.3, the right of CRLP to pursue a claim for a failure of XXXX to perform the
obligations set forth in Sections 3.4(a), 3.4(d), 7.5, 11.2, 13.1, 15, and any
agreement entered into pursuant to Section 28 shall be without regard to a
minimum in damages suffered, and shall not be subject to the cap on damages, as
provided in Section 5.3, nor shall any recovery on account of a failure to
perform in accordance with said Sections apply to the $50,000,000 cap.
6. REPRESENTATIONS AND WARRANTIES OF CALI AND CRLP.
6.1 In order to induce XXXX to perform as required hereunder, Cali
and CRLP hereby jointly and severally warrant and represent the following:
(a) (i) CRLP is a duly organized and validly existing
limited partnership organized and in good standing under the laws of the
State of Delaware, has all requisite power and authority to execute and
deliver this Agreement and all other documents and instruments to be executed
and delivered by it hereunder, and except as set forth on Schedule 6.1(a) to
perform its obligations hereunder and under such other documents and
instruments in order to acquire the Exchange Property in accordance with the
terms and conditions hereof. All necessary actions of the partners of CRLP
to confer such power and authority upon the persons executing this Agreement
and all documents which are contemplated by this Agreement on its behalf have
been taken.
(ii) Cali is a duly organized and validly existing
corporation organized and in good standing under the laws of the State of
Maryland, has all requisite power and authority to execute and deliver this
Agreement and all other documents and instruments to be executed and
delivered by it hereunder, and except as set forth on Schedule 6.1(a) to
perform its obligations hereunder and under such other documents and
instruments in order to permit CRLP to acquire the Exchange Property in
accordance with the terms and conditions hereof. All necessary actions of
the board of directors of Cali to confer such power and authority upon the
persons executing this Agreement and all documents which are contemplated by
this Agreement on its behalf have been taken.
(b) Except as set forth on Schedule 6.1(a), this
Agreement and the agreements and other documents to be executed and delivered
by each of Cali and CRLP hereunder, when duly executed and delivered, will be
the legal, valid and binding obligation of each of Cali and CRLP, enforceable
in accordance with the terms of this Agreement. Except as set forth on
Schedule 6.1(a), the performance by each of Cali and CRLP of each of its
duties and obligations under this Agreement and the documents and instruments
to be executed and delivered by each of them hereunder will not conflict
with, or result in a breach of,
31
or default under, any provision of any of the organizational documents of each
of Cali and CRLP or any agreements, instruments, decrees, judgments,
injunctions, orders, writs, laws, rules or regulations, or any determination or
award of any court or arbitrator, to which each of Cali and CRLP is a party or
by which each of its assets are or may be bound.
(c) The Xxxx Securities to be issued to the Xxxx Security
Holders and any Units to be issued upon the conversion of the Preferred Units or
exercise of the Warrants are duly authorized and, when issued by CRLP, will be
fully paid and non-assessable, free and clear of any mortgage, pledge, lien,
encumbrance, security interest, claim or rights of interest of any third party
of any nature whatsoever. The shares of Common Stock to be issued by Cali upon
redemption of the Xxxx Common Units, or the Common Units underlying the
Preferred Units or issued upon exercise of the Warrants or upon redemption of
the Common Units received upon the exercise of the Warrants, are authorized and
will be reserved for future listing with the New York Stock Exchange prior to
the date upon which any of the same become exercisable or redeemable for Common
Stock, and, upon such issuance, will be fully paid and non-assessable, free and
clear of any mortgage, pledge, lien, encumbrance, security interest, claim or
rights of interest of any third party of any nature whatsoever.
(d) CRLP has furnished to the Xxxx Contributors a true and
complete copy of the OP Agreement, as amended to date.
(e) Cali has caused to be delivered to the Xxxx
Contributors copies of the SEC Documents and will cause to be delivered to the
Xxxx Contributors copies of such additional documents as may be filed by Cali
pursuant to the Act or the Exchange Act on or prior to the Closing Date. The
SEC Documents were, and those additional documents filed between the date hereof
and the Closing will be, prepared and filed in compliance with the rules and
regulations promulgated by the SEC, and do not and will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein in order to make the statements contained therein, in light of
the circumstances under which they were made or will be made, not misleading
(excluding any and all information supplied in writing by XXXX to Cali and/or
CRLP for inclusion in the proxy statement to solicit Cali's stockholder approval
for the transactions contemplated herein).
(f) The consolidated financial statements (the "CALI
FINANCIALS") included in the SEC Documents have been prepared in accordance with
GAAP applied on a consistent basis during the period involved (except as may be
indicated in the notes thereto or, in the case of the unaudited statements, as
permitted by Form 10-Q) and present fairly (subject, in the case of the
unaudited statements, to normal, recurring year-end audit adjustments) the
consolidated financial position of Cali and its Subsidiaries at the dates
thereof and the consolidated results of operations and cash flows for the
periods then ended. For purposes of this Agreement, the terms "Subsidiary" and
"Subsidiaries" shall mean (i) any entity of which Cali (or other specified
entity) shall own directly or indirectly through a subsidiary, a nominee
arrangement or otherwise (x) at least a majority of the outstanding capital
stock (or other shares
32
of beneficial interest) or (y) at least a majority of the partnership, joint
venture or similar interests, and (ii) any entity in which Cali (or other
specified entity) is a general partner or joint partner, including without
limitation CRLP; for purposes of Section 6.1(f) only, the terms "Subsidiary" or
"Subsidiaries" shall specifically exclude Cali Services, Inc. and Grove Street
Urban Renewal Corp., which are the only non-qualified REIT subsidiaries of Cali
as of the date hereof.
(g) No action, suit, claim, investigation or proceeding,
whether legal or administrative or in mediation or arbitration, is pending or,
to the best of each of Cali's and CRLP's knowledge, threatened, at law or in
equity, against either of Cali or CRLP before or by any court or federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality which would prevent either of Cali or CRLP from performing its
respective obligations pursuant to this Agreement. There are no judgments,
decrees or orders entered on a suit or proceeding against Cali or CRLP, an
adverse decision which might, or which judgment, decree or order does, adversely
affect Cali's and CRLP's ability to perform its respective obligations pursuant
to, or XXXX'x rights under, this Agreement, or which seeks to restrain,
prohibit, invalidate, set aside, rescind, prevent or make unlawful this
Agreement or the carrying out of this Agreement or the transactions contemplated
hereby.
(h) The execution and delivery of this Agreement and the
performance by each of Cali and CRLP of its respective obligations hereunder do
not and will not conflict with or violate any law, rule, judgment, regulation,
order, writ, injunction or decree of any court or governmental or
quasi-governmental entity with jurisdiction over Cali or CRLP, including,
without limitation, the United States of America, the States of New York, New
Jersey, Pennsylvania, Connecticut, Delaware and Maryland or any political
subdivision of any of the foregoing, or any decision or ruling of any arbitrator
to which Cali or CRLP is a party or by which Cali or CRLP is bound or affected.
(i) Except for CRLP and as set forth on SCHEDULE 6.1(I),
Cali and CRLP have no Subsidiaries and no interests or investments in any
partnership, trust or other entity or organization. Each Subsidiary of Cali and
CRLP listed on SCHEDULE 6.1(I) has been duly organized, is validly existing and
in good standing under the laws of the jurisdiction of its organization, has the
corporate power and authority to own its properties and to conduct its business
and is duly registered, qualified and authorized to transact business and is in
good standing in each jurisdiction in which the conduct of its business or the
nature of its properties requires such registration, qualification or
authorization, except where the failure to be so registered, qualified or
authorized and in good standing would not have a material adverse effect on Cali
and its Subsidiaries, taken as a whole; all of the outstanding equity or other
participating interests of each Subsidiary listed on SCHEDULE 6.1(I) have been
duly authorized and validly issued, are fully paid and non-assessable.
(j) Except as disclosed in the SEC Documents filed with the
SEC prior to the date hereof or in SCHEDULE 6.1(J), since June 30, 1997, Cali
and each of its
33
Subsidiaries has conducted its business only in the ordinary course of such
business and has not (i) sold or acquired any real estate or interest therein or
(ii) leased all or substantially all of any property or (iii) entered into any
financing arrangements in connection therewith or (iv) granted an option to
purchase or lease all or substantially all of any property or (v) entered into a
contract, letter of intent, term sheet or other similar instrument to do any of
the foregoing and there has not been any change, circumstance or event that has
resulted in a material adverse effect on the business, properties, results of
operations or financial condition of Cali and its Subsidiaries, taken as a
whole.
(k) Except as set forth on SCHEDULE 6.1(K), neither Cali
nor any Subsidiary has any material liabilities or obligations of any nature
(whether absolute, accrued, contingent or otherwise) except for (i) liabilities
or obligations reflected or reserved against in its June 30, 1997 unaudited
consolidated balance sheet, (ii) liabilities and obligations relating to
outstanding leases that are not required to be disclosed under GAAP and (iii)
current liabilities incurred in the ordinary course of business since the date
of such balance sheet.
(l) (i) As of the second business day immediately
preceding the date hereof: (A) the authorized capital stock of Cali consisted
of 190,000,000 shares of its Common Stock and 5,000,000 shares of preferred
stock, par value $.01 per share (the "PREFERRED STOCK"); (B) the issued and
outstanding shares of capital stock of Cali consisted of 36,622,012 shares of
Common Stock; (C) no shares of Preferred Stock were outstanding; and (D) all
the outstanding shares of capital stock of Cali have been duly and validly
issued and are fully paid and non-assessable.
(ii) As of the second business day immediately
preceding the date hereof the issued and outstanding Units consist of 4,090,170
Common Units and no Preferred Units.
(iii) Except for the Xxxx Common Units, the Preferred
Units, the Warrants and the conversion or exchange rights which attach to the
warrants, options and convertible securities which are listed on SCHEDULE
6.1(L)(III), as of the date hereof and except for the existing outstanding Units
and options granted under the Cali Employee and Director Stock Option Plans (as
to which 1,858,259 shares are issuable as of the second business day immediately
preceding the date hereof subject, in certain cases, to vesting requirements),
there are no shares of Common Stock or any other equity security of Cali
issuable upon conversion or exchange of any security of Cali as of the date
hereof. As of the date hereof, no stockholder of Cali is entitled to any
preemptive or similar rights to subscribe for shares of capital stock of Cali.
(m) (i) Cali (A) intends to file its federal income tax
return for the tax year that ended on December 31, 1996 as a real estate
investment trust within the meaning of Sections 856 and 857 of the Code
("REIT"), (B) has complied with all applicable provisions of the Code relating
to a REIT for 1994, 1995, and 1996 (C) has operated, and intends to continue to
operate, in such a manner as to qualify as a REIT for 1997 and thereafter and
(D) has not taken
34
or omitted to take any action which would reasonably be expected to result in a
challenge to its status as a REIT, and no such challenge is pending or, to
Cali's knowledge, threatened.
(ii) Cali has timely filed with the appropriate
taxing authorities all tax returns required to be filed by it or has timely
requested extensions and any such request has been granted and has not expired.
Each such tax return is complete and accurate in all material aspects. All
taxes shown as owed by Cali or any of its Subsidiaries on any tax return have
been paid or accrued, except for taxes being contested in good faith and for
which adequate reserves have been taken. None of Cali or any of its
Subsidiaries has executed or filed with the Internal Revenue Service or any
other taxing authority any agreement now in effect extending the period for
assessment or collection of any Tax. Except as set forth in SCHEDULE
6.1(M)(II), none of Cali or any of its Subsidiaries is a party to any material
pending action or proceedings by any taxing authority for assessment or
collection of any Tax, and no material claim for assessment or collection of any
Tax has been asserted against it. True and complete copies of all federal,
state and local income or franchise tax returns that have been filed by Cali and
each of its Subsidiaries for 1994, 1995 and 1996 and all written communications
with a taxing authority relating thereto will be delivered to the Xxxx
Contributors or have been or will hereafter promptly be made available to
representatives of the Xxxx Contributors. To Cali's knowledge, no claim has been
made by a taxing authority in a jurisdiction where Cali or any of its
Subsidiaries does not file tax returns that it is or may be subject to taxation
by the jurisdiction. Except as set forth in SCHEDULE 6.1(M)(II), there is no
material dispute or claim concerning any Tax liability of Cali or any of its
Subsidiaries, (A) claimed or raised by any taxing authority in writing or (B) as
to which Cali or any of its Subsidiaries has knowledge, and neither Cali nor any
of its Subsidiaries has entered into or intends to enter into any agreements
with any taxing authority, including but not limited to closing agreements.
(iii) To its knowledge, as of the date hereof, Cali is
a "domestically-controlled" REIT within the meaning of Code Section
897(h)(4)(B).
(iv) Cali represents and warrants that to its
knowledge, except as set forth in SCHEDULE 6.1(M)(IV), no person or entity which
would be treated as an "individual" for purposes of Section 542(a)(2) of the
Code (as modified by Section 856(h) of the Code) owns or would be considered to
own (taking into account the ownership attribution rules under Section 544 of
the Code, as modified by Section 856(h) of the Code) in excess of 9.8% of the
value of the outstanding equity interest in Cali.
(v) Cali represents and warrants that (A) each
Subsidiary organized as a partnership including, without limitation, CRLP (and
any other Subsidiary that files tax returns as a partnership for federal income
tax purposes) was and continues to be classified as a partnership for federal
income tax purposes; and (B) each corporation or association which is taxable as
a corporation for federal income tax purposes and in which Cali has a direct or
indirect interest is either (i) a "qualified REIT subsidiary", as such term is
defined in Code Section 856(i), or (ii) a corporation of which less than ten
(10%) percent of the voting
35
securities are owned by Cali and of which the total securities owned by Cali
represent less than five percent of the value of the total assets of Cali,
within the meaning of Code Section 856(c)(5).
(n) Neither Cali nor any of its Subsidiaries is in default
under, or in violation of, any provision of its organizational documents.
(o) The Cali Property and other material assets are owned
by Cali directly or indirectly through its ownership of CRLP, the Partnership
Subsidiaries and CRLP's Subsidiaries.
(p) Neither Cali nor CRLP has made a general assignment for
the benefit of creditors, filed any voluntary petition in bankruptcy or suffered
the filing of any involuntary petition by either of Cali's or CRLP's creditors,
suffered the appointment of a receiver to take possession of all, or
substantially all, of Cali's or CRLP's assets, suffered the attachment or other
judicial seizure of all, or substantially all, of Cali's or CRLP's assets,
admitted in writing its inability to pay its debts as they come due or made an
offer of settlement, extension or composition to its creditors generally.
(q) SCHEDULE 6.1(Q) annexed hereto sets forth a true and
complete list of all committees established by the Board of Directors of Cali
(the "BOARD").
(r) (i) Annexed hereto as SCHEDULE 6.1(R)(I) is a
true and complete list of all Cali and CRLP collective bargaining agreements,
employment and consulting agreements or understandings related to same,
non-competition agreements, executive compensation plans, bonus plans,
directors' fee arrangements, deferred compensation agreements, employee
pension plans or retirement plans, employee profit sharing plans, 401(k)
savings plans, multiemployer plans, employee stock purchase and stock option
plans, employee welfare plans, severance plans, group life insurance,
hospitalization insurance or other similar plans or arrangements (either
written or oral, but only to the extent an oral plan provides material
benefits) providing for benefits to Cali employees or with respect to which a
Cali employee is a party, including without limitation, bonus programs, new
employment agreements and amended and restated employment agreements
implemented pursuant to resolutions of the Board adopted on September 3, 1997.
(ii) Cali and CRLP have complied and currently are
in compliance in all material respects, both as to form and operation, with
the applicable provisions of the Employee Retirement Income Security Act of
1974, as amended, and the Internal Revenue Code of 1986, as amended, with
respect to the Cali 401(k) Savings Plan (the "CALI 401(K) PLAN"). With
respect to the Cali 401(k) Plan, Cali has supplied the Xxxx Contributors with
the most recent determination letter issued by the Internal Revenue Service.
With respect to collective bargaining agreements which cover Cali employees,
Cali has supplied the Xxxx
36
Contributors with a true and complete copy of each collective bargaining
agreement currently in effect including all amendments thereto.
(s) Except for the OP Agreement, this Agreement and as set
forth on SCHEDULE 6.1(S) annexed hereto, there are no stockholders' agreements,
partners' agreements, voting trust agreements or other restrictive agreements
relating to the sale or voting of the Units or the Common Stock to which Cali or
CRLP is a party.
(t) Annexed hereto as SCHEDULE 6.1(T) is a listing (THE
"CALI RENT ROLL") of the following as of June 30, 1997, which is true, complete
and correct in all material respects for the Cali Property: (i) the name of each
tenant; (ii) the fixed rent actually being collected; (iii) the expiration date
of each lease; and (iv) any arrearages of any tenant beyond thirty (30) days.
(u) To the knowledge of CRLP, Cali and CRLP have performed
all of the material obligations and observed all of the covenants required of
each landlord under the terms of the leases.
(v) Except as set forth on SCHEDULE 6.1(V) annexed hereto
and except as covered by insurance, there are no actions, suits, labor disputes,
litigation or proceedings currently pending or, to the knowledge of Cali,
threatened against or related to Cali (with respect to the Cali Property) or to
all or any part of the Cali Property, the environmental condition thereof, or
the operation thereof.
(w) Except as set forth on SCHEDULE 6.1(W) annexed hereto,
Cali has received no written notice and has no knowledge of (i) any pending or
contemplated annexation or condemnation proceedings, or private purchase in lieu
thereof, affecting or which may affect the Cali Property, or any part thereof,
(ii) any proposed or pending proceeding to change or redefine the zoning
classification of all or any part of the Cali Property, (iii) any proposed or
pending special assessments affecting the Cali Property or any portion thereof,
(iv) any penalties or interest due with respect to real estate taxes assessed
against the Cali Property and (v) any proposed change(s) in any road or grades
with respect to the roads providing a means of ingress and egress to the Cali
Property.
(x) Except as set forth on SCHEDULE 6.1(X) annexed hereto,
Cali has no knowledge of any material notices, suits, or judgments relating to
any material violations (including environmental) of any laws, ordinances or
regulations affecting the Cali Property, or any violations or conditions that
may give rise thereto, and has no reason to believe that any agency, board,
bureau, commission, department or body of any municipal, county, state or
federal governmental unit, or any subdivision thereof, having, asserting or
acquiring jurisdiction over all or any part of the Cali Property or the
management, operation, use or improvement thereof contemplates the issuance
thereof, and there are no outstanding orders, judgments,
37
injunctions, decrees or writ of any Governmental Authorities against or
involving Cali or the Cali Property.
(y) There are no aboveground or underground storage tanks
or vessels which contain any Contaminants at any Cali Property, regardless of
whether such tanks or vessels are regulated tanks or vessels or not, except as
set forth on SCHEDULE 6.1(Y).
(z) Cali has no knowledge of outstanding requirements or
recommendations by (i) the insurance company(s) currently insuring the Cali
Property; (ii) any board of fire underwriters or other body exercising similar
functions, or (iii) the holder of any mortgage encumbering any of the Cali
Property, which require or recommend any repairs or work to be done on the Cali
Property of a material nature.
(aa) To the knowledge of Cali, there are no Contaminants or
Discharges on any Cali Property that would have a material adverse effect on
CRLP, its affiliates, Cali and its subsidiaries.
(bb) As used throughout this Agreement, the phrases "to
Cali's knowledge", "to CRLP's knowledge", or "to the knowledge of Cali or CRLP"
or any similar derivation thereof, shall mean the actual knowledge of Xxxxxx X.
Xxxx, Xxxx X. Xxxx, Xxxxx Xxxx, Xxxxx X. Xxxxxx and Xxxxx Xxxxxxxxx, after due
inquiry and investigation.
6.2 Each of Cali and CRLP acknowledges that it is not in a
significantly disparate bargaining position with respect to XXXX in connection
with the transaction contemplated by this Agreement and that Cali and CRLP were
represented by legal counsel in connection with this transaction.
6.3 All representations and warranties made by Cali and CRLP in
this Agreement shall survive the Closing Date for a period of one (1) year,
except that (a) the representations and warranties set forth in clauses (a),
(b), (c), (d) and (l) of Section 6.1 shall survive the Closing Date for the
applicable period of the statute of limitations (unless otherwise specified
herein), and shall not be merged in the delivery of the Deed or the Assignment
of Contributed Interests; and (b) the representations and warranties set forth
in clauses m(ii) and (iii), (t), (u), (v), (w), (x), (y), (z) and (aa) of
Section 6.1 shall not survive the Closing Date. Cali and CRLP agree to
indemnify and defend XXXX, and to hold XXXX harmless, from and against any and
all claims, liabilities, losses, deficiencies and damages as well as reasonable
expenses (including attorney's, consulting and engineering fees), and interest
and penalties related thereto, incurred by XXXX, by reason of or resulting from
any breach, inaccuracy, incompleteness or nonfulfillment of the representations,
warranties, covenants and agreements of Cali and CRLP contained in this
Agreement to the extent same was not actually known at Closing by any senior
executive officers of the Xxxx Entities, up to a maximum liability of
$50,000,000, except that such maximum liability is subject to the provisions of
Section 6.4. In addition, XXXX shall not have a right to bring a claim against
Cali or CRLP by virtue of any of
38
the representations or warranties being false or misleading unless (i) such
claim is brought on or prior to the date through which such representation or
warranty survives, (ii) and until notice of the false or misleading
representation or warranty has been given to CRLP and CRLP has had a reasonable
opportunity to cure same and (iii) the aggregate damages to XXXX resulting from
such false, misleading or untrue representations and warranties are reasonably
expected to exceed $1,500,000, but thereafter XXXX may bring a claim against
Cali or CRLP for the entire amount of its aggregate damages up to $50,000,000.
Cali and CRLP shall be jointly and severally liable for any damages hereunder.
6.4 Notwithstanding anything to the contrary contained in Section
6.3, the right of XXXX to pursue a claim for a failure of CRLP or Cali to
perform the obligations set forth in Sections 2.2(a), 2.2(b), 2.2(c), 2.2(d),
the last sentence of 11.1(a), 13.1, 15, 19 and 27 shall be without regard to a
minimum in damages suffered, and shall not be subject to the cap on damages, as
provided in Section 6.3, nor shall any recovery on account of a failure to
perform in accordance with said Sections apply to the $50,000,000 cap.
7. COVENANTS OF XXXX.
7.1 XXXX covenants and agrees that between the date hereof and the
Closing Date it shall perform or observe, or cause to be performed or observed,
the following with respect to the Real Property:
(a) The Xxxx Entities will operate and maintain the Real
Property in the ordinary course of business and use reasonable efforts to
reasonably preserve for CRLP their relationships with their Tenants, suppliers,
and others having on-going relationships with the Real Property. The Xxxx
Entities will complete any capital expenditure program currently in process and
anticipated to be completed at or prior to Closing. The Xxxx Entities will not
defer taking any actions or spending any of its funds, or otherwise manage the
Real Property differently, due to the transaction contemplated by this
Agreement.
(b) The Xxxx Entities as landlords, will not enter into any
new leases with respect to the Real Property, or renew or modify any Lease,
without CRLP's prior written consent; provided, however that they shall be
permitted to enter into new leases, renewals or modifications upon prior notice
to, but without the prior written consent of, CRLP so long as such lease,
renewal or modification is on market terms and conditions with bona fide third
parties and is the type of transaction which they currently enter into in the
ordinary course of its business.
(c) Neither XXX nor any of the Xxxx Entities shall:
(i) Enter into any agreement requiring them to do
work for any Tenant after the Closing Date without first obtaining the prior
written consent of CRLP unless such agreement, in the respective Xxxx Entities'
reasonable opinion, is on market terms and
39
conditions with bona fide third parties and is the type of agreement which the
respective Xxxx Entities currently enters into in the ordinary course of its
business, in which case no consent of CRLP will be required; or
(ii) Accept the surrender of any Service Contract or
Lease, or grant any concession, rebate, allowance or free rent, except in its
ordinary course of business on market terms, with bona fide third parties and
upon prior written notice to CRLP.
(iii) Establish, adopt or amend any employee benefit
plans (severance or otherwise) or collective bargaining agreement, grant any
options, or increase in any manner the compensation or fringe benefits of any
director, officer or employee or other personnel (whether employees or
independent contractors) or pay any benefit not payable under any existing
agreement or Xxxx Plan, except (A) in the ordinary course of business and
consistent with past practices and as required by law, provided that, before
entering into any employment agreement or increasing or agreeing to increase the
compensation, bonuses or other benefits of any employee in the ordinary course
of business and as required by law, XXXX shall first have consulted in good
faith with Cali and/or CRLP with respect to the terms of any such employment
agreement or increase in compensation, bonuses or other benefits; or (B) in
connection with the transactions contemplated by this Agreement for which Cali
or CRLP would not have any liability.
(d) No Xxxx Entity shall, between the date hereof and the
Closing Date, apply any Security Deposits with respect to any Tenant in
occupancy on the Closing Date, except in its ordinary course of business.
(e) Between the date hereof and the Closing Date, no Xxxx
Entity shall renew, extend or modify any of the Service Contracts without the
prior written consent of CRLP unless such is done by such Xxxx Entity in the
ordinary course of its business and such Service Contracts contain a right to
terminate on thirty (30) days' notice with no material cost to exercise such
right, in which case no consent of CRLP will be required.
(f) XXXX shall not remove any Personal Property located in
or on the Real Property, except as may be required for repair and replacement or
as set forth in Schedule 5.1(o). All replacements shall be free and clear of
liens and encumbrances except to the extent the original Personal Property was
so encumbered and shall be of quality at least equal to the replaced items and
shall be deemed included in this sale, without cost or expense to CRLP, other
than expressly provided herein.
(g) XXXX shall, upon request of CRLP at any time after the
date hereof, assist CRLP in its preparation of audited financial statements,
statements of income and expense, and such other documentation as CRLP may
reasonably request, covering the period of their ownership of the Real Property.
40
(h) Between the date hereof and the Closing Date, the Xxxx
Entities will make all required payments under any mortgage affecting the Real
Property (other than payments due at stated maturity) within any applicable
grace period, but without reimbursement by CRLP therefor. The Xxxx Entities
shall also comply with all other material terms covenants, and conditions of any
mortgage on the Real Property.
(i) XXXX shall not cause or permit the Exchange Property,
or any interest therein, to be alienated, mortgaged, licensed, encumbered or
otherwise be transferred.
(j) The Xxxx Entities agree to maintain and keep in full
force and effect the hazard, liability and casualty insurance policies it is
currently maintaining on the Real Property.
(k) XXXX shall permit CRLP and its authorized
representatives to inspect the Books and Records of its operations at all
reasonable times upon reasonable notice. All Books and Records not conveyed to
CRLP hereunder shall be maintained for CRLP's inspection at XXXX'x address as
set forth above.
(l) XXXX shall:
(i) promptly notify CRLP of, and promptly deliver
to CRLP, a certified true and complete copy of any notice they may receive, on
or before the Closing Date, from any Governmental Authority, concerning a
violation of Environmental Laws or Discharge of Contaminants.
(ii) contemporaneously with the signing and delivery
of this Agreement, and subsequently promptly upon receipt by XXXX or its
representatives, deliver to CRLP a certified true and complete copy of all
environmental site assessments, investigations, and documents related to
Contaminants and to prior operations, which operations or Contaminants are
reasonably likely to have impacted the environment, and all other material
Environmental Documents.
(m) XXXX hereby acknowledges and agrees that the rental
amount set forth in SCHEDULE 7.1(M) (the "THRESHOLD AMOUNT") was the
underlying basis for determining the amount of the Exchange Consideration. The
parties hereto assume that the Threshold Amount will be the approximate net
operating income of the Exchange Property for the calendar year ending
December 31, 1998. XXXX shall use its best efforts to enter into new leases
or renewals of existing Leases on market terms and conditions with bona fide
third parties and of the type which each respective Xxxx Entity enters into
in the ordinary course of its business in order to achieve the Threshold
Amount.
(n) The Xxxx Entities, at their sole cost and expense,
shall complete all work under construction at the Real Property and complete all
tenant improvement work and capital expenditure programs which have been
commenced by the Xxxx Entities as of the date
41
hereof, related to all leasing activity and otherwise in accordance with the
obligation giving rise to such work having to be performed, and shall obtain and
deliver to CRLP, as soon as practical, all final certificates of completion and
occupancy, or other documentation reasonably satisfactory to CRLP, evidencing
the acceptance of said work by all appropriate governmental authorities having
jurisdiction thereover and the party for whom the work is being so performed;
said obligations shall survive Closing.
(o) XXXX shall take all commercially reasonable action to
obtain the requisite consents and approvals from their partners and mortgagees
to consummate the transactions contemplated by this Agreement. Notwithstanding
anything to the contrary contained herein, the failure of XXXX to obtain such
requisite consents and approvals, after taking all commercially reasonable
action, shall not constitute a "willful default" as that term is used in Section
22.2.
7.2 No later than thirty (30) days from the date hereof, XXXX shall
deliver to CRLP a comfort letter covering the Exchange Property charts and
tables contemplated by Section 7.5 and described on SCHEDULE 7.2, which letter
shall be revised, modified or updated as the case may be as reasonably requested
by CRLP. By November 14, 1997, XXXX shall deliver to Cali unaudited Property
Financials for the period from July 1, 1997 through September 30, 1997, reviewed
by the same accountants.
7.3 XXXX covenants and agrees that it shall timely provide CRLP
with drafts of any pertinent documentation in connection with leasing matters,
Service Contracts and agreements for work to be done on behalf of Tenants and
shall keep CRLP informed of all substantive negotiations and discussions with
respect to the foregoing matters on an on-going basis.
7.4 As soon as is practicable after the Closing, XXXX covenants and
agrees to take all necessary action to ensure that Cali possesses the sole and
exclusive right to use the names "The Xxxx Company" and "Xxxx" except as
follows: (i) the Xxxx Group shall have the right to use the name "Xxxx" for any
non-competing business purpose as of the date hereof, except in a public real
estate company where the "Xxxx" name is prominent, and (ii) the Xxxx Group shall
have the right to use the name "Xxxx" for current competing business not
included as part of the Exchange Property, the Eliminated Properties and the
Option Properties.
7.5 XXXX covenants and agrees to assist Cali by providing the
necessary information concerning XXXX and the Exchange Property in connection
with the filing of Cali's proxy statement for the solicitation of its
shareholder approval of the transactions contemplated hereby, including without
limitation all federal, state and local income, excise, franchise and all other
tax filing and financial statements required in connection therewith. The costs
of gathering, providing and reporting all the information relating to the
Exchange Property and necessary for such filings and proxy solicitations shall
be paid for by XXXX.
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7.6 XXXX covenants and agrees that until the earlier of the
termination of this Agreement or the Closing Date, XXXX will not, and will use
all reasonable efforts to ensure that XXXX'x officers, directors, shareholders,
partners, affiliates, representatives, agents and advisors, do not, directly or
indirectly, institute, pursue, enter into or encourage (including by way of
furnishing information) any discussions, negotiations or agreements
contemplating or providing for any merger, acquisition, purchase or sale of the
Exchange Property or any interest therein or other business combination with any
person or entity other than Cali. In the event XXXX receives an unsolicited
BONA FIDE third party offer relating to such a transaction, XXXX shall provide
Cali with immediate written notice thereof, which notice will include the
identity of the offeror and the terms of the offer.
0X. XXXXXXXXX XX XXXX.
0X.0 Xxxx covenants and agrees that within thirty (30) days of the
date hereof and subject to satisfaction by XXXX of the obligations set forth in
Section 7.5 in a manner reasonably satisfactory to Cali, it shall, at its sole
cost and expense, file with the SEC an initial proxy statement in order to
conduct any proxy solicitations as are necessary for shareholder approval of the
transaction contemplated by this Agreement (including an amendment to the
certificate of incorporation of Cali to modify the corporate name to Xxxx-Xxxx).
7A.2 Cali covenants and agrees not to issue any class of capital
stock senior to the Preferred Units (as if the Preferred Units of CRLP were
preferred stock of Cali) without the consent of 66.7% of the holders of the
Series B Preferred Units, voting as a single class.
7A.3 CRLP agrees that (a) the Xxxx Contributors shall have access to
the Books and Records, after Closing, for inspection or duplication, at the
offices of CRLP at reasonable times and upon reasonable notice and (b) through
the eighth (8th) anniversary of the Closing Date, before any of the Cali Records
are destroyed or disposed of by CRLP, CRLP shall offer to return such Books and
Records to the Xxxx Contributors, at the Xxxx Contributors' cost and expense,
and the Xxxx Contributors shall respond to such offer within ten (10) business
days of receipt of same. This obligation of CRLP shall not require CLRP to
maintain any computer equipment or programs in order to access or retrieve any
of said Books and Records.
7A.4 Cali covenants and agrees that it shall not hire any current or
former employee of a Xxxx Entity or XXX without the prior consent of Xxxxxxxx
Xxxxx, which consent shall be at his sole and absolute discretion.
7A.5 Between the date hereof and the Closing, Cali covenants and
agrees that it shall keep Xxxxxxxx Xxxxx apprised of any acquisitions it may be
contemplating in the future. In the event Cali desires to either (a) enter into
a line of business substantially different from its present business or (b)
enter into a transaction involving an acquisition greater than $100,000,000, it
shall, in either instance, seek the consent of Xxxxxxxx Xxxxx on behalf of XXXX,
which consent may be withheld in his sole discretion. The withholding of such
consent will not
43
prohibit Cali from entering into any such transactions, but will permit XXXX to
terminate this Agreement if it so desires.
8. OPTION PROPERTIES.
8.1 At the Closing, each of the owner(s) of certain option
properties set forth in SCHEDULE 8.1 (the "OPTION PROPERTIES") and CRLP or
its designee shall enter into an agreement (the "OPTION AGREEMENT") in
recordable form, which form shall include without limitation, a right of
inspection provision similar to Section 3.1(d) with the due diligence period
to be agreed upon by the parties, and all the applicable representations and
warranties set forth in Section 5 of this Agreement and which form shall be
mutually agreed upon by the parties hereto. An Option Agreement shall be
recorded against each of the Option Properties at Closing in the county land
records in which such Option Properties are located.
9. ESTOPPEL CERTIFICATES.
9.1 XXXX agrees to deliver to each Tenant, no later than thirty
(30) days from the date hereof, an estoppel certificate in the form annexed
hereto as EXHIBIT 9.1 for Tenant's execution, completed to reflect the Tenant's
particular Lease status. XXXX agrees to use commercially reasonable efforts to
obtain from all Tenants the estoppel certificates in such form; PROVIDED,
HOWEVER, that if any Tenant shall refuse to execute an estoppel letter in such
form, XXXX shall nevertheless use commercially reasonable efforts to obtain
estoppel certificates in the form in which each Tenant is obligated to deliver
same as provided in its Lease. XXXX agrees to deliver to CRLP copies of all
estoppel letters received by Tenants in the form received by XXXX. The estoppel
certificates required to be obtained pursuant to this Section 9 are collectively
referred to as the "ESTOPPEL CERTIFICATES".
9.2 As a condition to Closing, XXXX shall deliver (a) an Estoppel
Certificate from all Tenants which occupy an entire building, (b) an Estoppel
Certificate from each of the Tenants which lease space at the Real Property in
excess of 25,000 square feet in the aggregate and (c) Estoppel Certificates from
the remaining Tenants leasing at least seventy-five (75%) percent of the square
footage of the Real Property, including the Tenants set forth in clauses 9.2(a)
and (b) above.
10. CLOSING.
10.1 The consummation of the transactions contemplated hereunder
(the "CLOSING") shall take place at the offices of Pryor, Cashman, Xxxxxxx &
Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on or about five (5) business
days following the later to occur of (a) Cali's shareholder approval of the
transactions contemplated hereby and (b) completion of the Cali Inspection
Period (the "CLOSING DATE").
44
10.2 (a) On the Closing Date, the Xxxx Entities, at their sole
cost and expense, will deliver or cause to be delivered to CRLP the following
documents with respect to the contribution and exchange of the Property conveyed
pursuant to Section 1.3 fully executed by all parties thereto other than CRLP or
parties claiming by, through or under CRLP:
(i) Bargain and sale deeds or their equivalent and
applicable assignments of Ground Lease (collectively, the "DEEDS") with covenant
in proper statutory form for recording so as to convey to CRLP or its Subsidiary
Partnerships good and marketable title to the Real Property, free and clear of
all liens and encumbrances, except the Permitted Encumbrances. The delivery of
each Deed shall also be deemed to constitute a transfer of the Personal Property
associated with the Real Property conveyed by the Deed; the delivery of all of
the Deeds shall be deemed to constitute a transfer of the balance of the
Personal Property to CRLP. No portion of the Exchange Consideration is
attributable to the Personal Property.
(ii) All original Leases and Ground Leases and all
other documents pertaining thereto, and certified copies of such Leases or other
documents where XXXX, using its best efforts, is unable to deliver originals of
same.
(iii) All other original documents or instruments
referred to herein, including without limitation the Service Contracts, Licenses
and Permits and Books and Records, and certified copies of same where XXXX,
using its commercially reasonable efforts, is unable to deliver originals.
(iv) A letter to Tenants advising the Tenants of the
transaction hereunder and directing that rent and other payments thereafter be
sent to CRLP or its designee, as CRLP shall so direct.
(v) Duly executed and acknowledged assignment and
assumption of all Leases, Rents and Security Deposits substantially in the form
previously agreed to by the parties.
(vi) Duly executed and acknowledged omnibus
assignment substantially in the form of EXHIBIT 10.2(A)(VI) annexed hereto
("OMNIBUS ASSIGNMENT").
(vii) An affidavit, and such other document or
instruments required by the Title Company, executed by each Xxxx Entity
certifying (i) against any work done or supplies delivered to the Real Property
which might be grounds for a materialman's or mechanic's lien, in form
sufficient to enable the Title Company to affirmatively insure CRLP against any
such lien, (ii) that the signatures on the Deed are sufficient to bind each Xxxx
Entity and convey the Property to CRLP and (iii) the Rent Roll.
(viii) Affidavits and other instruments, including but
not limited to all organizational documents of each Xxxx Entity and its general
partner or managing
45
member, as applicable, including operating agreements, filed copies of limited
liability certificates, articles of organization, and good standing
certificates, reasonably requested by CRLP and the Title Company evidencing the
power and authority of the Xxxx Entities to enter into this Agreement and any
documents to be delivered hereunder, and the enforceability of same.
(b) On the Closing Date, the Xxxx Contributors, at their
sole cost and expense, will deliver or cause to be delivered to CRLP the
following documents, with respect to the contribution and exchange of the
Contributed Interests conveyed pursuant to Section 1.2, fully executed by all
parties thereto other than CRLP or parties claiming by, through or under CRLP:
(i) Duly executed and acknowledged assignments of
the Contributed Interests from each Xxxx Contributor (collectively, the
"ASSIGNMENT OF CONTRIBUTED INTEREST"), in the form of EXHIBIT 10.2(B)(I) annexed
hereto, to CRLP as assignee, together with all the applicable and requisite
partnership consents, partner consents, limited liability company consents,
mortgagee consents and resolutions by the general partner or managing member of
each Contributed Entity authorizing said transaction.
(ii) All original Leases and Ground Leases and all
other documents pertaining thereto, and certified copies of such Leases or other
documents where the Xxxx Contributors, using its best efforts, are unable to
deliver originals of same.
(iii) All other original documents or instruments
referred to herein, including without limitation the Service Contracts, Licenses
and Permits and Books and Records, and certified copies of same where the Xxxx
Contributors, using their best efforts, are unable to deliver originals.
(iv) All original organizational documents relating
to each Contributed Entity and all statements of accounts, books and records,
insurance policies and other documentation.
(v) Affidavits and other instruments, including but
not limited to all organizational documents of each Contributed Entity and its
general partner or managing member, as applicable, including operating
agreements, filed copies of limited liability certificates, articles of
organization, and good standing certificates, reasonably requested by CRLP and
the Title Company evidencing the power and authority of the Xxxx Contributors to
enter into this Agreement and any documents to be delivered hereunder, and the
enforceability of same.
(vi) All original insurance policies related to any
Exchange Property and set forth in SCHEDULE 10.2(B)(VI).
46
(c) On the Closing Date, XXXX, at its sole cost and
expense, will deliver or cause to be delivered to CRLP the following documents,
with respect to the contribution and exchange of the Exchange Property, fully
executed by all parties thereto other than CRLP or parties claiming by, through
or under CRLP:
(i) The original Estoppel Certificates required to
be obtained pursuant to Section 9 hereof.
(ii) A list of all cash security deposits and all
non-cash security deposits (including letters of credit) delivered by Tenants
under the Leases, together with other instruments of assignment, transfer or
consent as may be necessary to permit CRLP to realize upon same.
(iii) A certificate indicating that the
representations and warranties of XXXX made in this Agreement are true and
correct in all material respects as of the Closing Date, or if there have been
any changes, a description thereof.
(iv) A Rent Roll for each Real Property and each
Option Property, current as of the Closing Date, certified by XXXX as being true
and correct in all material respects.
(v) All proper instruments as shall be reasonably
required for the conveyance to CRLP of all right, title and interest, if any, of
XXXX in and to any award or payment made, or to be made, (i) for any taking in
condemnation, eminent domain or agreement in lieu thereof of land adjoining all
or any part of the Real Property, (ii) for damage to the Real Property, or
Ground Leases or any part thereof by reason of change of grade or closing of any
such street, road, highway or avenue, and (z) for any taking in condemnation or
eminent domain of any part of the Real Property or Ground Leases.
(vi) In order to avoid the imposition of the
withholding tax payment pursuant to Section 1445 of the Code, a certificate
signed by an officer of XXXX to the effect that XXXX is not a "foreign person"
as that term is defined in Section 1445(f)(3) of the Code.
(vii) All such transfer and other tax declarations and
returns and information returns, duly executed and sworn to by XXXX as may be
required of XXXX by law in connection with the conveyance of the Exchange
Property to CRLP, including but not limited to, Internal Revenue Service forms.
(viii) A statement setting forth all adjustments and
prorations shown thereon.
47
(ix) A Tradenames Assignment Agreement substantially
in the form of EXHIBIT 10.2(C)(IX) annexed hereto.
(x) Non-Competition Agreements from Xxxxx Xxxx,
Xxxxx Xxxx and Xxxxxxxxx Xxxx substantially in the form of EXHIBIT 10.2(C)(X)-1
and a Non-Competition Agreement from Xxxxxxx Xxxx substantially in the form of
EXHIBIT 10-2(C)(X)-2.
(xi) Employment agreement with Xxxxxxxx Xxxxx as
described in Section 26.2(iii) of this Agreement.
(xii) Estoppel certificate addressed to CRLP from each
mortgagee in form and substance reasonably acceptable to CRLP.
(xiii) The Option Agreement described in Section
8.1.
(xiv) The guaranties, if any, undertaken at the Xxxx
Contributors' option, as provided for in Section 19 with respect to the
Mortgages.
(xv) Duly executed and acknowledged assignment and
assumption of all Ground Leases substantially in the form previously agreed to
by the parties.
(xvi) Such other documents as may be reasonably
required by the mortgagees providing for the restructure or modification of the
Mortgages as provided herein.
(xvii) Letter of direction regarding the issuance of
the Xxxx Securities to the Xxxx Contributors from the legal and beneficial
owners of the Exchange Property. The signatories of said letter are also to
acknowledge that they are the legal and beneficial owners of same.
(xviii) Estoppel letters addressed to the respective
Xxxx Entities, their successors and assigns from the lessors under the Ground
Leases in form and substance reasonably acceptable to CRLP.
(xix) Waivers of rights of first refusal, or evidence
of the lapse of said rights, in form reasonable satisfactory to CRLP, with
respect to any of the Exchange Property which is subject to said rights.
(xx) Evidence of compliance with the various State
transfer tax laws.
(xxi) Opinion of Battle Xxxxxx LLP in a form to be
mutually agreed upon by the parties.
48
(xxii) The Letters of Non-Applicability described in
Section 12.2(j).
(xxiii) Evidence of compliance with the Iowa
Environmental Quality Act and Iowa Code Xxx. Section 558.69, or the affidavit
described in Section 12.2(k).
(xxiv) Evidence of compliance with the San Francisco,
California PWC art. 20, the California Xxxxxxxxx-Xxxxxxx-Xxxxxx Hazardous
Substance Account Act and Cal. Health & Safety Code Sections 25915-25919.7, or
the affidavit described in Section 12.2(l).
(xxv) Evidence of compliance with Ariz. Rev. Stat.
Xxx. Section 33-434.01, or the affidavit described in Section 12.2(m).
(xxvi) The Consulting Agreement among Xxxx-Xxxx and the MK
Contributors described in Section 12.2(n) of this Agreement.
(xxvii) Such other documents as may be reasonably required or
appropriate to effectuate the consummation of the transactions contemplated by
this Agreement.
10.3 On the Closing Date, Cali and CRLP, at their sole cost and
expense, will deliver or cause to be delivered to XXXX the following payments,
instruments and documents, fully executed by all parties thereto other than XXXX
or parties claiming by, through or under XXXX:
(a) The Cash Payment, net of adjustments and prorations.
(b) The Unit Certificates and Preferred Certificates and
Warrants representing, in the aggregate, the Xxxx Securities.
(c) Resolutions of the Board of Directors of Cali (the
"BOARD"), effective as of the Closing Date, (i) reconstituting the Board so that
three (3) of the members shall be designated by the Xxxx Group, seven (7) shall
be independent members, four (4) of which shall be suggested by the Xxxx Group
and reasonably approved by Cali and three (3) of such independent members shall
be designated by the current members of the Board; all such seven (7) members to
be independent of control by Cali or the Xxxx Group and three (3) directors
nominated by Cali which shall be Xxxx X. Xxxx, Xxxxxx X. Xxxx and Xxxxxx
Xxxxxxxx; (ii) appointing Xxxxxxxx Xxxxx as President and Chief Operating
Officer; (iii) establishing a four (4) person Executive Committee which shall
consist of Xxxxxxx Xxxx, Xxxxxxxx Xxxxx, Xxxxxx X. Xxxx and Xxxx X. Xxxx (the
"EXECUTIVE COMMITTEE"); (iv) approving the issuance of the Xxxx Securities to be
issued to the Xxxx Security Holders; (v) amending Cali's stock option plans (the
"STOCK OPTION PLAN") (subject to subsequent stockholder approval) to increase
the maximum number of shares of Common Stock reserved for issuance of awards by
at least 1,500,000; and (vi) changing the name of Cali and CRLP subject to
Section 26.1.
49
(d) Duly executed and acknowledged assignment and
assumption of all Leases, Rents and Security Deposits substantially in the form
previously agreed to by the parties.
a) (e) Duly executed and acknowledged Omnibus Assignment.
(f) A certificate indicating that the representations and
warranties of Cali and CRLP made in this Agreement are true and correct as of
the Closing Date, or if there have been any changes, a description thereof.
(g) Employment agreement with Xxxxxxxx Xxxxx as described
in Section 26.2(iii) of this Agreement.
(h) Affidavits and other instruments, including but not
limited to all organizational documents of Cali and CRLP including limited
partnership agreements, filed copies of limited partnership certificates,
articles of organization, and good standing certificates, reasonably requested
by the Xxxx Contributors evidencing the power and authority of Cali and CRLP to
enter into this Agreement and any documents to be delivered hereunder, and the
enforceability of same.
(i) An opinion of counsel of Pryor, Cashman, Xxxxxxx &
Xxxxx in a form to be mutually agreed to by the parties.
(j) A Registration Rights Agreement substantially in the
form of EXHIBIT 10.3(J).
(k) Amendment to Exhibit A of the OP Agreement reflecting
admission of XXXX, or its designees, as limited partners.
(l) The Tradenames Assignment Agreement substantially in
the form previously agreed to by the parties and annexed hereto as EXHIBIT
10.2(C)(IX).
(m) Duly executed and acknowledged assignment and
assumption of all Ground Leases substantially in the form previously agreed to
by the parties.
(n) Duly executed and acknowledged Assignments of
Contributed Interest in the form of EXHIBIT 10.2(B)(I).
(o) Amendment to the OP Agreement to cover the issues set
forth on EXHIBIT 10.3(O) which amendment shall be mutually agreed upon by the
parties hereto.
50
(p) A statement setting forth all adjustments and
prorations shown thereon.
(q) Such other documents as may be reasonably required or
appropriate to effectuate the consummation of the transactions contemplated by
this Agreement.
10.4 All transfer taxes and expenses on the Deeds and any state or
county documentary stamps or transfer taxes on the Deeds or the Contributed
Interest shall be paid by XXXX. XXXX shall pay all customary recordation
charges, clerk's fees, taxes, transfer and recording charges. CRLP shall pay
all title insurance premiums, title examination fees and survey costs. Each
party shall be responsible for its own attorney's fees. The provisions of this
Section 10.4 shall survive the Closing.
10.5 The Closing shall be consummated without compliance with bulk
sales laws. If by reason of any applicable bulk sales law, any claims are
asserted by creditors of XXXX related to periods prior to the Closing, such
claims shall be the responsibility of XXXX, and XXXX shall jointly and severally
indemnify, defend and hold harmless CRLP (and their respective directors,
officers, employees, affiliates, successors and assigns) from and against all
losses or liabilities (including reasonable attorneys fees and costs), if any,
based upon, arising out of or otherwise in respect of the failure to comply with
such bulk sales laws.
10.6 (a) Cali and CRLP acknowledge and agree that, except as set
forth in this Agreement, CRLP is acquiring the Exchange Property in its "as is"
condition "subject to all faults" and specifically and expressly without any
warranties, representations or guarantees, either express or implied, of any
kind, nature, or type whatsoever from or on behalf of XXXX. Cali and CRLP
acknowledge that, except as set forth in this Agreement, and except for
documents, reports and information related to the environmental integrity of the
Real Property, the Option Properties, or both, neither Cali nor CRLP has relied
and is not relying on any information, document, reports, sales brochure or
other literature, maps or sketches, financial information, projections,
proformas or statements, that may have been given by or made by or on behalf of
XXXX. CRLP and Cali further acknowledge that, except as otherwise set forth
herein, all materials relating to the Real Property which have been provided by
XXXX, including but not limited to, the Phase I Reports, have been provided
without any warranty or representation, expressed or implied as to their
content, suitability for any purpose, accuracy, truthfulness or completeness and
neither CRLP nor Cali shall have any recourse against XXXX or its counsel,
advisors, agents, officers, directors or employees for any information in the
event of any errors therein or omissions therefrom.
(b) Cali and CRLP hereby acknowledge and agree that, except
as set forth herein, they are not entitled to, and do not, rely on XXXX or its
agents as to (i) the quality, nature, adequacy or physical condition, whether
latent or patent, of the Real Property including, but not limited to, the
structural elements, foundation, roof, appurtenances, access, landscaping
parking facilities or the electrical, mechanical, HVAC, plumbing, sewage or
utility system,
51
facilities or appliances at or in connection with the Real Property, if any;
(ii) the existence, quality, nature, adequacy, physical condition, or location
of any utilities serving the Real Property; (iii) the development potential of
the Real Property, its habitability, merchantability or fitness, suitability or
adequacy of the Real Property for any particular purpose; (iv) the zoning or
other legal status of the Real Property or the potential use of the Real
Property; (v) the Real Property's or its operations' compliance with any
applicable codes, laws, building codes, fire codes, regulations, statutes,
ordinances, covenants, conditions or restrictions of, or agreements with any
governmental or quasi-governmental entity or of any other person or entity;
(vi) the quality of any labor or materials relating in any way to the Real
Property; or (vii) the condition of title to the Real Property or the nature,
status and extent of any right, encumbrance, license, reservation, covenant,
condition, restriction or any other matter affecting title to the Real Property.
11. ADJUSTMENTS.
11.1 The following items under (a) through (f) with respect to the
Real Property and under (g) are to be apportioned as of midnight on the date
preceding the Closing:
(a) Rents, escalation charges and percentage rents payable
by Tenants as and when collected. All moneys received from Tenants from and
after the Closing shall belong to CRLP and shall be applied by CRLP to current
rents and other charges under the Leases. After application of such moneys to
current rents and charges, CRLP agrees to remit to XXXX any excess amounts paid
by a Tenant to the extent that such Tenant was in arrears in the payment of rent
prior to the Closing, but subject to the provisions of Section 11.2 with respect
to Additional Rents.
(b) Upon sufficient advance notice, a cashier's or
certified check or wire transfer to the order of CRLP in the amount of all cash
Security Deposits and any prepaid rents, together with interest required to be
paid thereon. Upon prior notice to XXXX, at the election of CRLP, such amount
may be allotted to CRLP as a credit against the Cash Payment.
(c) Utility charges payable by XXXX, including, without
limitation, electricity, water charges and sewer charges. If there are meters
on the Real Property, XXXX will cause readings of all said meters to be
performed not more than ten (10) days prior to the Closing Date. To the extent
said meters are not read prior to Closing, CRLP will cause same to be read
promptly thereafter and a PRO-RATA adjustment shall be made upon said reading.
(d) Amounts payable under the Service Contracts other than
those Service Contracts which CRLP has elected not to assume.
(e) Real estate taxes due and payable for the calendar year
or fiscal year, as applicable. If the Closing Date shall occur before the tax
rate is fixed, the apportionment of real estate taxes shall be upon the basis of
the tax rate for the preceding year applied to the
52
latest assessed valuation. If subsequent to the Closing Date, real estate taxes
(by reason of change in either assessment or rate or for any other reason) for
the Real Property should be determined to be higher or lower than those that are
apportioned, a new computation shall be made, and XXXX agrees to pay CRLP any
increase shown by such recomputation and vice versa.
(f) The value of fuel stored at any of the Real Property,
at the Xxxx Entities' or the Contributed Entities' most recent cost, including
taxes, on the basis of a reading made within fifteen (15) days prior to the
Closing by their supplier. To the extent said reading is not made prior to
Closing, CRLP will cause same to be read promptly thereafter and a PRO-RATA
adjustment shall be made upon said reading.
(g) Amounts incurred or accrued prior to the Closing Date
or payable to or with respect to any New Cali Employees or other personnel (i.e.
independent contractors of XXXX or an affiliate of XXXX) for services performed
or otherwise, including, without limitation, costs related to accrued vacation
time.
11.2 Promptly following request by CRLP, XXXX shall deliver to CRLP
a list of additional rent, however characterized, under a Lease, including
without limitation, real estate taxes, electrical charges, utility costs and
operating expenses (collectively, "ADDITIONAL RENTS") billed to Tenants for the
calendar year 1997 (both on a monthly basis and in the aggregate), the basis for
which the monthly amounts are being billed and the amounts incurred by XXXX on
account of the components of Additional Rent for calendar year 1997.
11.3 All amounts due and owing under the Mortgages other than the
outstanding principal balance thereof, including by way of example accrued and
unpaid interest, deferred interest, late charges, default interest, prepayment
fees or penalties, and other fees and charges, shall be paid by XXXX on or
before the Closing.
11.4 If, on the Closing Date, the Real Property or any part thereof
shall be or shall have been affected by an assessment or assessments which are
or may become payable in annual installments, all the unpaid installments of any
such assessment due and payable on or prior to the Closing Date shall be paid
and discharged by XXXX on the Closing Date.
11.5 At the Closing, the parties shall adjust for certain
unperformed tenant improvement work, as more particularly described in Section
13.2 hereof, and CRLP shall, if appropriate, receive a credit therefor.
11.6 At the Closing, CRLP shall be credited with those unpaid
leasing commissions, tenant improvement obligations and other capital
expenditures related to Exchange Property set forth on SCHEDULE 5.1(M-1) and
which are the obligation of XXXX.
53
11.7 Except as otherwise provided in this Agreement, the adjustments
shall be made in accordance with the customs in respect to title closings in the
State of New York.
11.8 Any errors in calculations or adjustments shall be corrected or
adjusted as soon as practicable after the Closing.
11.9 The credits set forth in Sections 11.5 and 11.6 shall be made
against the Cash Payment.
11.10 The provisions of this Section 11 shall survive the Closing
Date.
12. CONDITIONS PRECEDENT TO CLOSING.
12.1 The obligations of XXXX to deliver title to the Exchange
Property and to perform the other covenants and obligations to be performed by
XXXX on the Closing Date shall be subject to the following conditions (all or
any of which may be waived, in whole or in part, by XXXX):
(a) The representations and warranties made by CRLP and
Cali herein shall be true and correct in all material respects with the same
force and effect as though such representations and warranties had been made on
and as of the Closing Date. For the purposes of the Closing condition described
in this Section 12.1(a), any limitation to the knowledge, best knowledge, or
actual knowledge in any representation, warranty, covenant or agreement made by
CRLP or Cali herein shall be inapplicable.
(b) CRLP and Cali shall have executed and delivered to XXXX
all of the documents provided herein for said delivery.
(c) Cali and CRLP shall have performed all covenants and
obligations undertaken by Cali and CRLP herein in all respects and complied with
all conditions required by this Agreement to be performed or complied with by
them on or before the Closing Date.
(d) The resolutions of the Board set forth in Section
10.3(c) shall have been approved and implemented.
(e) Cali shall not have revoked its prior election pursuant
to Section 856(c)(1) of the Code to be taxed as a REIT, and shall be in
compliance with all applicable federal income tax laws, rules and regulations,
including the Code, necessary to permit it to be taxed as a REIT. Cali shall
not have taken any action or have failed to take any action which would
reasonably be expected to, alone or in conjunction with any other factors,
result in the loss of its status as a REIT for federal income tax purposes.
54
(f) Cali shall have issued the Xxxx Common Units and the
Preferred Units to the Xxxx Unit Holders and Xxxx Preferred Unit Holders,
respectively, in the case of the Preferred Units pursuant to the Certificates of
Designation which shall be substantially in the form of EXHIBITS 2.4(A)(I) and
EXHIBIT 2.4(A)(II) annexed hereto.
(g) Cali shall have issued an aggregate amount of 2,000,000
Warrants to the Xxxx Warrant Holders, which Warrants shall be substantially in
the form of EXHIBIT 2.5 annexed hereto.
(h) Cali shall have received shareholder approval for the
transactions contemplated by this Agreement as contemplated by the rules of The
New York Stock Exchange, Inc.
(i) The Board shall have accepted the resignations of (i)
the following existing Board members: Xxxxxx Xxxx, Xxxxx Xxxx, Xxxx Xxxxxx,
Xxxxxxx DeGehetto, Xxxxx Xxxxxx and Xxxx Xxxxxxxxxx, (ii) Xxxxxx X. Xxxx as
President, (iii) Xxxxx Xxxx as Chief Operating Officer and (iv) Xxxx X. Xxxx as
Chief Administrative Officer.
(j) The OP Agreement shall have been amended pursuant to
the amendment set forth in EXHIBIT 10.3(O) annexed hereto.
12.2 The obligations of Cali and CRLP to accept title to the
Exchange Property and Cali and CRLP's obligation to perform the other covenants
and obligations to be performed by Cali and CRLP on the Closing Date shall be
subject to the following conditions (all or any of which may be waived, in whole
or in part, by Cali or CRLP):
(a) The representations and warranties made by XXXX shall
be true and correct in all material respects with the same force and effect as
though such representations and warranties had been made on and as of the
Closing Date. For the purposes of the Closing condition described in this
Section 12.2(a), any limitation to the knowledge, best knowledge, or actual
knowledge in any representation, warranty, covenant or agreement made by XXXX
herein shall be inapplicable.
(b) XXXX shall have performed all covenants and obligations
undertaken by them herein in all respects and complied with all conditions
required by this Agreement to be performed or complied with by it on or before
the Closing Date.
(c) The Title Company is unconditionally prepared to issue
to CRLP a Title Policy meeting the requirements set forth in Section 4 hereof
for an "insurable title".
(d) The mortgagees and the Xxxx Entities shall have entered
into such documents as shall be acceptable to each of the parties for the
modification or restructure of the
55
Mortgages with an outstanding principal balance of Three Hundred Two Million One
Hundred and Forty Seven Thousand ($302,147,000) Dollars subject to the provision
of Section 2.6.
(e) All options to purchase which are triggered by the
transactions contemplated by this Agreement and all rights of first refusal
and rights of first offer, with respect to the Real Property shall have been
waived, either pursuant to a specific waiver executed by the beneficiary
thereof or by the lapse of time as provided in the instrument setting forth
such right. If the waiver is based upon the lapse of time, XXXX shall
certify compliance with the relevant instrument.
(f) XXXX shall have executed and delivered to CRLP all of
the documents provided for herein for said delivery.
(g) All new and amended and restated employment agreements,
bonus and severance packages which are applicable to Cali officers, including
without limitation, any payments to be made on or after the Closing Date with
respect thereto as approved by the Board on September 3, 1997 shall be
implemented and with appropriate payment to be made immediately prior to or
contemporaneously at the Closing and such Board approval shall remain unmodified
and in full force and effect
(h) Cali shall have received shareholder approval for the
transactions contemplated by this Agreement as contemplated by the rules of The
New York Stock Exchange, Inc.
(i) XXXX shall have received the requisite consent or
approval from all necessary mortgagees and third-party partners in order to
contribute and convey the Exchange Property. The parties acknowledge that they
expect XXXX to have completed its obligations in the foregoing sentence prior to
November 1, 1997, although such obligations may be completed after such date,
but in no event later than the mailing of the definitive Cali proxy statement to
its shareholders.
(j) XXXX shall, prior to the closing, at its sole cost and
expense, obtain Letters of Non-Applicability pursuant to New Jersey's Industrial
Site Recovery Act, N.J.S.A. 13:1K-6 ET SEQ., and the regulations promulgated
thereunder ("ISRA") from the New Jersey Department of Environmental Protection
("NJDEP"), with respect to the Real Property located in the State of New Jersey.
Upon CRLP's request, the Xxxx Contributors and the Xxxx Entities shall provide
CRLP with all information, reports, studies and analysis which the Xxxx
Contributors and the Xxxx Entities delivered to NJDEP with the application for,
or otherwise in connection with, the issuance of the Letters of
Non-Applicability.
(k) XXXX shall, prior to the closing, at its sole cost and
expense, comply with the Iowa Environmental Quality Act, Iowa Code Xxx. Section
455B.430, and Iowa Code Xxx. Section 558.69 and the regulations promulgated
thereunder and any amending and successor legislation and regulations now or
hereafter existing, with respect to the Real Property located in the State of
Iowa. The Xxxx Contributors and the Xxxx Entities shall, at their sole cost and
56
expense, make all submissions to, provide all information to, and comply with
all requirements of the Iowa Department of Natural Resources or its successor.
In the event that the Iowa Real Property is not subject to the Iowa
Environmental Quality Act or Iowa Code Xxx. Section 558.69, or both, then, prior
to closing, the Xxxx Contributors shall, at its sole cost and expense, provide
to CRLP an affidavit stating that the Iowa Real Property is not subject to the
provisions of Iowa Environmental Quality Act or the Iowa Code Xxx. Section
558.69, or both.
(l) XXXX shall, prior to the closing, at its sole cost and
expense, comply with San Francisco, California Public Works Code art. 20,
Sections 1001-1015 ("PWC art. 20"); Cal. Health & Safety Code Section 25359.7;
the California Xxxxxxxxx-Xxxxxxx-Xxxxxx Hazardous Substance Account Act, Cal.
Health & Safety Code Sections 25915-25919.7 any regulations promulgated
thereunder and any amending or successor legislation and regulations now or
hereafter existing with respect to the Real Property located in San Francisco,
California. In the event that the San Francisco, California Real Property is
not subject to PWC art. 20, the California Xxxxxxxxx-Xxxxxxx-Xxxxxx Hazardous
Substance Account Act, Cal. Health & Safety Code Sections 25915-25919.7, or any
combination thereof, then prior to closing, the Xxxx Contributors shall, at its
sole cost and expense, provide to CRLP an affidavit stating that the San
Francisco, California Real Property is not subject to the provisions of PWC art.
20, the California Xxxxxxxxx-Xxxxxxx-Xxxxxx Hazardous Substances Account Act,
Cal. Health & Safety Code Sections 25915-25919.7, or any combination thereof.
(m) XXXX shall, prior to the Closing, at its sole cost and
expense, comply with Ariz. Rev. Stat. Xxx. Section 33-434.01, and the
regulations promulgated thereunder and any amending and successor legislation
and regulations now or hereafter existing with respect to the Real Property
located in the State of Arizona. In the event that the Arizona Real Property is
not subject to Ariz. Rev. Stat. Xxx. Section 33-434.01, then prior to closing,
the Xxxx Contributors shall, at its sole cost and expense, provide to CRLP an
affidavit stating that the Arizona Real Property is not subject to the
provisions of Ariz. Rev. Stat. Xxx. Section 33-434.01.
(n) The MK Contributors shall have executed and delivered
to CRLP a consulting and management agreement mutually acceptable to the parties
thereto (the "CONSULTING AGREEMENT") dated as of the Closing Date among the MK
Contributors and Xxxx-Xxxx whereby Xxxx-Xxxx shall provide management and
consulting services in connection with the properties set forth on SCHEDULE
12.2(N) which shall be retained by the MK Contributors. In consideration for
such services, the MK Contributors agree to pay Xxxx-Xxxx an annual consulting
fee of $1,000,000 for a period of three (3) years and as more fully described in
said Consulting Agreement.
(o) XXXX shall have entered into a sufficient number of
new leases and/or extensions or renewals of existing Leases so that the rents
generated by the Exchange Property for the year ending December 31, 1998 are
anticipated to equal or exceed the Threshold Amount.
13. LEASING COMMISSIONS AND
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TENANT IMPROVEMENT OBLIGATIONS.
13.1 All leasing commissions, tenant improvement obligations,
capital expenditures and other costs associated with the Leases and any
leasing activity through the Closing Date shall be the obligation of XXXX and
shall have been paid for or otherwise satisfied prior to Closing; provided,
however, (1) any leasing commissions or tenant improvement obligations
associated with leasing activity which results in any incremental net
operating income generated by the Exchange Property above the Threshold
Amount shall be the obligation of Xxxx-Xxxx and (2) any leasing commissions
or tenant improvement obligations associated with renewals of Leases
scheduled to expire after January 1, 1998 shall also be the obligation of
Xxxx-Xxxx including, but not limited to, those costs set forth on SCHEDULE
5.1(M-2). All leasing commissions and tenant improvement obligations set
forth on SCHEDULE 5.1(M-1) for which CRLP shall receive a credit at Closing
pursuant to Section 11.6 of this Agreement shall be the post-closing
obligation of Xxxx-Xxxx.
13.2 XXXX and CRLP agree to proceed in good faith in establishing
all of the amounts to be adjusted pursuant to Section 13.1, including the cost
of all tenant improvement obligations and leasing commissions with respect to
the Exchange Property which were to have been performed, completed and paid for
prior to the Closing.
13.3 The provisions of this Section 13 shall survive the Closing.
14. ASSIGNMENT.
This Agreement may not be assigned by Cali or CRLP except to a
directly or indirectly wholly-owned subsidiary or subsidiaries of Cali or CRLP,
or to a partnership in which any such wholly-owned subsidiary or subsidiaries
owns, either directly or indirectly, at least seventy-five (75%) percent of the
profits, losses and cash flow thereof and controls the management of the affairs
of such partnership (any such entity, a "PERMITTED ASSIGNEE") and any other
assignment or attempted assignment by Cali or CRLP shall constitute a default by
Cali or CRLP hereunder and shall be deemed null and void and of no force and
effect. Notwithstanding anything to the contrary contained herein, Cali or CRLP
may assign the right to purchase individual portions of the Real Property to
various entities provided that each of such entities is a Permitted Assignee. A
copy of any assignment permitted hereunder, together with an agreement of the
assignee assuming all of the terms and conditions of this Agreement to be
performed by Cali or CRLP with respect to the portion of the applicable Real
Property, in form reasonably satisfactory to counsel for XXXX, shall be
delivered to the attorneys for XXXX prior to the Closing, and in any event no
such assignment shall relieve Cali and CRLP from their obligations under this
Agreement.
15. BROKER.
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15.1 Cali, CRLP and XXXX represent and warrant that they have not
dealt with any brokers, finders or salesmen, in connection with this
transaction. Cali, CRLP and XXXX agree to indemnify, defend and hold each other
harmless from and against any and all loss, cost, damage, liability or expense,
including reasonable attorneys' fees, which they may sustain, incur or be
exposed to by reason of any claim for fees or commissions. The provisions of
this Section shall survive the Closing or other termination of this Agreement.
16. CASUALTY LOSS.
16.1 XXXX and the Contributed Entities shall continue to maintain,
in all material respects, the fire and extended coverage insurance policies with
respect to the Real Property (the "INSURANCE POLICIES") which are currently in
effect, through the date that said coverage currently expires or the Closing,
whichever is later, which obligation shall survive the Closing.
16.2 If at any time prior to the Closing Date all or any portion of
the Real Property is destroyed or damaged (a "DAMAGED PROPERTY") as a result of
fire or any other casualty (a "CASUALTY"), XXXX shall promptly give written
notice ("CASUALTY NOTICE") thereof to CRLP. CRLP shall have the right to
exclude a Real Property if the following have not been satisfied (a) the
Insurance Policies fully cover the damage resulting from the Casualty, (b)
subject to the rights of any mortgagee, the proceeds of any insurance, together
with a credit equal to XXXX'x deductible under the Insurance Policies, shall be
paid to CRLP at the time of the Closing, (c) all unpaid claims and rights in
connection with losses to the Damaged Property shall be assigned to CRLP at
Closing without in any manner affecting the consideration hereunder, (d) the
Tenants comprising ninety (90%) percent of the Damaged Property do not have a
right (or have waived their right) to terminate their Leases as a result of the
Casualty, (e) there is adequate rent interruption insurance in place for a
period of at least one (1) year and (f) all governmental approvals are available
to permit the Damaged Property to be rebuilt. If any of the provisos set forth
in the preceding sentence are not met, CRLP shall have the right to eliminate
such Real Property from the transaction contemplated by this Agreement, and any
such Real Property eliminated pursuant to this Section 16.2 shall be considered
an Eliminated Property.
16.3 If a Real Property is the subject of a Casualty but CRLP does
not terminate this Agreement pursuant to the provisions of this Section, then
XXXX shall, prior to the Closing Date, cause all temporary repairs to be made to
the Damaged Property as shall be required to prevent further deterioration and
damage to the Damaged Property and to protect public health and safety,
provided, the cost of any such repairs shall not exceed the amount of proceeds
made available to XXXX. XXXX shall have the right to be reimbursed from the
proceeds of any insurance with respect to the Damaged Property for the cost of
such temporary repairs.
17. CONDEMNATION.
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In the event of a material taking (as defined in this Section 17),
CRLP shall have the right, at its sole option, to either (a) terminate this
Agreement by giving XXXX written notice to such effect at any time after its
receipt of written notification of any such occurrence, or (b) accept title to
the remainder of the Real Property without reduction of any consideration given
hereunder and eliminate the affected property in its entirety from this
transaction. Should CRLP so terminate this Agreement in accordance with this
Section, neither party shall have any further liability or obligations to the
other. In the event CRLP shall accept title to the remainder of the affected
property, XXXX shall, subject to the rights of the holder of any existing
mortgage, assign all proceeds of such taking to CRLP, and same shall be CRLP's
sole property, and CRLP shall have the sole right to settle any claim in
connection with the Real Property. If CRLP elects to eliminate the affected
property in its entirety, the Exchange Consideration shall be reduced by the
Allocated Property Value allocated to such affected property in proportion to
the Cash Payment, the Mortgage Debt Amount, the Xxxx Common Units, the Preferred
Units and the Warrants. The term "MATERIAL TAKING" shall be defined to mean the
institution of any proceedings, judicial, administrative or otherwise which
would (a) reasonably be expected to reduce the aggregate useable square footage
of the Real Property by at least a full floor, (b) entitle a Tenant occupying at
least a full floor to terminate its Lease and such Tenant does not waive such
right prior to Closing, (c) cause access to the Real Property to be taken or
materially diminished (I.E., such taking does not provide access to a publicly
dedicated street or is an impediment to traffic flow from and to the Real
Property), or (d) result in parking no longer being in compliance with
applicable zoning laws and XXXX is unable to remedy such non-compliance prior to
Closing.
18. TRANSFER RESTRICTIONS; RIGHT OF FIRST OFFER.
18.1 None of (i) the Xxxx Common Units, (ii) the Preferred Units,
(iii) the Warrants, (iv) the Common Units underlying the Preferred Units or the
Warrants, and/or (v) the shares of Common Stock underlying the Xxxx Common Units
and/or the Preferred Units (the "UNDERLYING SHARES") (items (i) through (v),
collectively "CALI SECURITIES") shall be Transferred except in accordance with
or as otherwise specifically permitted by the provisions of this Agreement. Any
Transfer effected in violation of this Agreement shall be void AB INITIO.
18.2 In addition to any other restriction on Transfer contained in
this Agreement, no holder of Cali Securities shall Transfer any such Cali
Securities to any individual, corporation, partnership or any other entity (each
a "PERSON"), unless (a) the certificates representing such Cali Securities bear
appropriate legends reflecting the restrictions on Transfer contained in this
Agreement, and (b) such person shall have executed and delivered to CRLP, as a
condition to the Transfer of Cali Securities to such person, an appropriate
document approved by CRLP confirming that such person takes such Cali Securities
subject to, and agrees to comply with all the terms and conditions of, this
Agreement and the OP Agreement. CRLP shall not record on its books and records
any purported Transfer of any such Cali Securities in violation of this
Agreement and any such purported Transfer shall have no force or effect.
60
18.3 Notwithstanding anything herein to the contrary, each of the
Xxxx Security Holders hereby agrees that neither they nor any of their
respective designees of transferees may (i) with respect to the Warrants, the
Xxxx Common Units and the Series A Preferred Units, exercise all or part of the
Warrants and/or convert all or part of the Xxxx Common Units and/or the Common
Units received pursuant to the conversion of Series A Preferred Units prior to
the first anniversary of the Closing Date, and (ii) with respect to the Series B
Preferred Units convert all or part of the Common Units received pursuant to the
conversion of the Series B Preferred Units (other than the Estate Units) prior
to the third anniversary of the Closing Date (such respective dates hereinafter
sometimes referred to in this Section 18 as the "HOLDING PERIOD").
18.4 Each of the Xxxx Contributors hereby agrees that (i) upon
expiration of the respective Holding Period, the Xxxx Common Units, the
Preferred Units, the Warrants, the Underlying Shares and the Common Units
underlying the Preferred Units and the Warrants (the "UNDERLYING UNITS") may be
Transferred privately in accordance with the terms of the OP Agreement (if
applicable) and this Section 18 and (ii) upon conversion of the Xxxx Common
Units or the Underlying Units to shares of Common Stock, they will execute the
agreement with CRLP attached hereto as SCHEDULE 18.4 which provides that the
Underlying Shares may be Transferred publicly (subject to the restrictions of
the Act and the rules and regulations promulgated thereunder) in trading blocks
of 1,000,000 shares of Common Stock or less, subject to certain conditions set
forth therein.
18.5 Subject to Sections 18.2, 18.3, 18.7, 5.4 and 5.5, the
restrictions contained in Sections 18.1, 18.4 and 18.6 of this Agreement shall
not apply to: (i) bona-fide pledges of, or encumbrances on, Cali Securities made
in favor of (A) an institutional lender or financial institution having gross
assets in excess of $3,000,000,000 or (B) to a "bulge bracket" investment bank
(as that term is generally defined), including, without limitation, equity swaps
and derivative transactions, as security for debt; PROVIDED, HOWEVER, that in no
event may the value of such pledged or encumbered Cali Securities during the
applicable Holding Period equal or exceed fifty (50%) percent of the total value
of the Cali Securities held by the individual holder or group of holders
pledging such Cali Securities or otherwise encumbering them as of the Closing
Date (it being understood that at the end of the Holding Period with respect to
a specific security comprising the Cali Securities, the foregoing limitation
shall not be applicable) (such fifty (50%) percent determination made at the
date of the pledge or granting of the encumbrance without consideration for any
reduction in value of the Cali Securities after the borrowing is effected); and
(ii) Transfers of Cali Securities to Permitted Transferees (as hereinafter
defined), made in accordance with the procedures set forth in the OP Agreement.
"PERMITTED TRANSFEREES" means (A) any entity or individual comprising XXXX or
the Xxxx Security Holders; (B) any direct or indirect equity owner of XXXX or
the Xxxx Security Holders; (C) members of the Immediate Family (as defined in
the OP Agreement) of the Xxxx Group or the Xxxx Security Holders (or any direct
or indirect equity owner thereof) and trusts for the benefit of one or more
members of the Immediate Family of the Xxxx Group or the Xxxx Security
61
Holders (or any direct or indirect equity owner thereof) created for estate
and/or gift tax purposes and/or (D) any public charity, private foundation or
charitable institution as defined in Section 501(c)(3) of the Code.
Notwithstanding anything herein to the contrary, no Transfer made pursuant to
this Section 18.5 shall be effective until such Permitted Transferee,
transferee, pledgee or other secured party signs a counterpart to the OP
Agreement and this Agreement, whereby such individual or entity agrees that the
terms and conditions of the OP Agreement and this Agreement, are applicable to
the Cali Securities in which such Permitted Transferee, transferee, pledgee or
other secured party has an interest.
18.6 Except as otherwise specifically permitted by Section 18.5,
a holder of Preferred Units, Xxxx Common Units, Underlying Shares or Underlying
Units (for purposes of this subsection 18.6, collectively, "TRANSFER
SECURITIES") may Transfer only in compliance with the provisions of this
Section 18.6.
(a) If any holder of Transfer Securities should desire to
sell all or any part of its Transfer Securities (for purposes of this subsection
18.6, a "SELLING HOLDER"), the Selling Holder shall first deliver written notice
to CRLP (the "NOTICE OF OFFER"), which Notice of Offer shall specify (i) the
nature and class of such Transfer Securities; (ii) the number of Transfer
Securities owned by the Selling Holder; (iii) the number of Transfer Securities
that such Selling Holder desires to sell (the "OFFER SECURITIES"); (iv) the
proposed cash selling price for the Offer Securities (the "OFFER PRICE"); and
(v) all other material terms and conditions of the offer (the "OFFER TERMS").
The Notice of Offer shall constitute an irrevocable offer by the Selling Holder
to sell to CRLP all of the Offer Securities at the Offer Price and on the Offer
Terms.
(b) Within ten days following the CRLP's receipt of the
Notice of Offer (the "OFFER PERIOD"), CRLP may elect to purchase all Offer
Securities by delivering to the Selling Holder notice of the number of the Offer
Shares that CRLP is electing to purchase (an "ACCEPTANCE NOTICE"). Should CRLP
fail to deliver an Acceptance Notice within the Offer Period, it shall be deemed
to have declined to purchase any of the Offer Securities. A duly delivered
Acceptance Notice shall be deemed to be an irrevocable commitment by CRLP to
purchase from the Selling Holder the number of Offer Shares indicated in the
Acceptance Notice.
(c) CRLP shall be obligated to purchase the Offer
Securities, in accordance with the Offer Notice, as it elected to purchase in
the Acceptance Notice, at a closing pursuant to Section 18.6(e) of this
Agreement.
(d) If CRLP (i) notifies the Selling Holder that it is
electing not to purchase the Offer Securities or (ii) does not deliver an
Acceptance Notice prior to the expiration of the Offer Period, the Selling
Holder may sell the Offer Securities to a third-party purchaser; PROVIDED,
HOWEVER, that any such sale of the Offer Securities to such third-party
purchaser must be made substantially on the same terms and conditions as those
set forth in the Notice of Offer, including without limitation, a purchase price
that is no less than ninety-five percent (95%) of the
62
Offer Price; PROVIDED, FURTHER, that any such sale of the Offer Securities to
such third-party purchaser must be consummated no later than ninety (90) days
following the original delivery of the Notice of Offer. If the Selling Holder
wishes to sell all or any part of the Offer Securities on terms more favorable
than ninety-five (95%) percent of the Offer Price to a third-party purchaser or
does not sell the Offer Securities on substantially the terms and conditions
contained in the Notice of Offer (within ninety-five (95%) percent of the Offer
Price) within the aforementioned ninety (90) day period, the Selling Holder
shall again be obligated to make a new offer to CRLP, in accordance with this
Section 18, before it shall be permitted to consummate a sale of the Offer
Securities or other Transfer Securities, or any part thereof, in a privately
negotiated transaction.
(e) The closing of purchases of the Offer Securities by
CRLP pursuant to this Section 18.6 shall take place within fifteen (15) days
following the delivery of the Acceptance Notice by CRLP to the Selling Holder at
the offices of Pryor, Cashman, Xxxxxxx & Xxxxx located at 000 Xxxx Xxxxxx, Xxx
Xxxx, XX 00000, or at such other date, time or place as the parties to the sale
may agree. At such closing, the Selling Holder shall sell, transfer and deliver
to CRLP full right, title and interest in and to the Offer Securities purchased
by CRLP, free and clear of all liens, security interests or adverse claims of
any kind and nature and shall deliver to CRLP a certificate or certificates
representing the Offer Securities sold to CRLP, duly endorsed for transfer or
accompanied by appropriate stock transfer powers duly endorsed with signatures
guaranteed by a commercial bank, trust company or registered broker-dealer and
with the appropriate transfer tax stamps affixed in exchange for the Offer
Price. Simultaneously with delivery of such certificates, CRLP shall deliver to
the Selling Holder an amount of cash equal to the Offer Price, in full payment
of the purchase price of the Offer Securities purchased by CRLP.
18.7 Notwithstanding anything herein to the contrary, no holder of
Cali Securities may transfer, convert and/or exercise any such Cali Securities
unless (a) such transfer, conversion and/or exercise is exempt from the
requirements of registration under the Act and any applicable state securities
law (or, in the case of conversion and/or exercise of Cali Securities, the
Underlying Shares to be issued pursuant to such conversion and/or exercise are
exempt from the requirements of registration under the Act and any applicable
state securities law) or (b) upon registration of such Cali Securities and/or
Underlying Shares in compliance therewith.
19. LIMITED GUARANTY OF XXXX.
19.1 In order to allow XXXX and/or the Unit Holders (the "XXXX UNIT
GROUP") to defer the recognition of gain for federal income tax purposes
resulting from the contribution of property to CRLP, at Closing, or at any time
subsequent thereto in accordance with the terms hereof, CRLP and its affiliates
will permit the Xxxx Unit Group to guarantee, or indemnify CRLP or Cali for the
bottom portion (i.e. the least risky portion) of the Mortgage Debt Amount in the
aggregate amount of up to $241,000,000 (the "XXXX DEBT AMOUNT"). Those persons
identified on SCHEDULE 19.1(A) (the "CALI GROUP") are currently permitted to
guarantee or indemnify Cali or CRLP for the bottom portion (i.e. the least risky
portion) of the debt of CRLP or its affiliates in the amount of up to
$83,000,000 (pari passu with the RM Group) (the "CALI
63
DEBT AMOUNT"). Those persons identified on SCHEDULE 19.1(B) (the "RM GROUP")
are currently permitted to guarantee or indemnify Cali or CRLP for the bottom
portion (i.e. the least risky portion) of the debt of CRLP or its affiliates in
the amount of up to $184,000,000 (pari passu with the Cali Group) (the "RM DEBT
AMOUNT"). Subject to Section 19.2 below, Cali, CRLP and their affiliates agree
to maintain at all times (1) an amount of liabilities equal to the Xxxx Debt
Amount solely for the Xxxx Unit Group to guarantee (or indemnify Cali or CRLP
for); (2) an amount of liabilities equal to the Cali Debt Amount solely for the
Cali Group to guarantee (or indemnify Cali or CRLP for); and (3) an amount of
liabilities equal to the RM Debt Amount solely for the RM Group to guarantee (or
indemnify Cali or CRLP for). CRLP and Cali agree to take any and all action
necessary so that the execution of each guarantee or indemnity by the Xxxx Unit
Group, the Cali Group or the RM Group results in basis for such groups for
federal income tax purposes.
19.2 In the event that any member of the Xxxx Unit Group, the Cali
Group or the RM Group (i) obtains a tax-free step-up in the basis of their Units
for federal income tax purposes (e.g., upon the death of a member); (ii) sells,
transfers or otherwise disposes of their Units in a taxable transaction; (iii)
receives a "tax" payment from CRLP or Cali in the amount described in Section
27.1 hereof (or corresponding provisions of other agreements to which members of
the Cali Group or the RM Group are parties) in reimbursement of taxes triggered
to such member as a result of the sale, transfer or other disposition of
property contributed by such member, or (iv) receives an allocation under Treas.
Reg. Section 1.704-3(b) using the "traditional method" without curative
allocation that reduces the amount of any Built-in-Gain (as defined in Section
27.1 hereof), then the Xxxx Debt Amount, the Cali Debt Amount or the RM Debt
Amount, as the case may be, shall be commensurately reduced.
20. TAX MATTERS.
20.1 XXXX will pay or provide for payment of all Taxes due and
payable on or after the Closing and, to the extent allowed by law, will timely
file all returns and reports required to be filed on or after the Closing with
respect to Taxes imposed in connection with its business and the ownership and
operation of the Exchange Property and the Option Property for all taxable
periods (or portions thereof) ending on or prior to the Closing, for which CRLP
could be held liable on a claim made against CRLP. XXXX will provide CRLP with a
copy of such returns promptly after filing. CRLP or Cali will file all tax
returns required to be filed with respect to the Exchange Property after the
Closing Date for all taxable periods beginning before the Closing Date and
ending after the Closing Date and such Taxes shall be allocated between XXXX and
CRLP in accordance with their respective periods of ownership of the Exchange
Properties. The provisions of this Section shall survive the Closing Date until
the applicable period of any statute of limitation on assessments of any of such
Taxes has expired.
20.2 XXXX shall pay any and all Taxes including, without limitation,
Taxes imposed with respect to its business and the ownership or operation of the
Real Property and the Option Property for all taxable periods (or portions
thereof) ending on or prior to the Closing,
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imposed upon CRLP based, in whole or in part, upon the failure to comply with
the bulk sales laws.
20.3 XXXX is hereby authorized to continue any proceeding now
pending for the reduction of the assessed valuation of the Real Property and the
Option Properties as set forth on SCHEDULE 20.3 and to litigate or settle the
same in XXXX'x discretion. CRLP is hereby authorized by XXXX, in CRLP's sole
discretion, to file any applicable proceeding for the 1997 tax roll for the
reduction of the assessed valuation of the Real Property and the Option
Properties. The net refund of taxes, if any, for any tax year for which XXXX or
CRLP shall be entitled to share in the refund shall be divided between XXXX and
CRLP in accordance with the apportionment of taxes pursuant to the provisions
hereof. All expenses in connection therewith, including counsel fees, shall be
borne by XXXX and CRLP in proportion to their ownership period of the asset in
question. XXXX and CRLP each agree to grant to the other a power of attorney or
other authorization necessary to carry out the intention of this Section 20.3.
20.4 "TAXES" mean all federal, state, county, local, foreign and
other taxes of any kind whatsoever (including, without limitation, income,
profits, premium, estimated, excise, sales, use, occupancy, gross receipts,
franchise, ad valorem, severance, capital levy, production, transfer, license,
stamp, environmental, withholding, employment, unemployment compensation,
payroll related and property taxes, import duties and other governmental charges
or assessments), whether or not measured in whole or in part by net income, and
including deficiencies, interest, additions to tax or interest, and penalties
with respect thereto, and including expenses associated with contesting any
proposed adjustment related to any of the foregoing.
20.5 Cali, as the general partner of CRLP, covenants and agrees that
CRLP and its affiliates will use the "traditional method" without curative
allocations (as defined in Treas. Reg. Section 1.704-3(b)) of allocating income,
gain, loss and deduction to account for the variation between the fair market
value and adjusted basis of the Exchange Property for federal income tax
purposes with respect to (i) the contribution of the Exchange Property, and (ii)
any revaluation of the Exchange Property in accordance with the provisions of
Treas. Reg. Sections 1.704-1(b)(2)(iv)(F), 1.704-1(b)(2)(iv)(G) and
1.704-3(a)(6). The provisions of this Section shall survive the Closing Date.
21. PUBLICATION.
21.1 CRLP shall have the right to make such public announcements or
filings with respect to the exchange as CRLP may deem reasonably prudent
(provided that prior to any such announcement or filing, CRLP shall submit the
text of the announcement or filing to Xxxxxxxx Xxxxx for his approval on behalf
of XXXX, such approval not to be unreasonably withheld or delayed). CRLP shall
not issue any such announcement without the prior reasonable written approval of
Xxxxxxxx Xxxxx on behalf of XXXX as to the text of the announcement; provided,
however, that CRLP shall be entitled to make such filings or announcements upon
advice of counsel as may be necessary or required by law. CRLP and XXXX agree
that any
65
public announcements will refer to the exchange contemplated herein as a merger
of the entities. CRLP agrees to use commercially reasonable efforts to
coordinate with the Xxxx Contributors and jointly make any public announcements
with regard to the agreements contained herein. The Xxxx Contributors' right to
approve public announcements or filings as set forth in this Section 21 shall
not survive the Closing.
22. REMEDIES
22.1 If the obligations set forth in Section 12.2 have been
satisfied (unless the failure or inability to be so satisfied is due to Cali or
CRLP) and if CRLP or Cali is not ready, willing and able to perform its
obligations hereunder on the Closing Date due to a willful default of CRLP or
Cali or CRLP's or Cali's willful failure to comply with any representation,
warranty, covenant or agreement set forth herein, then XXXX shall be entitled to
either (a) terminate this Agreement upon notice to CRLP, following which neither
party shall thereafter have any further obligations under this Agreement; or (b)
pursue all of its available remedies at law.
22.2 If the obligations set forth in Section 12.1 have been
satisfied (unless the failure or inability to be so satisfied is due to XXXX)
and if XXXX is not ready, willing and able to perform its obligations hereunder
on the Closing Date due to a willful default on the part of XXXX or XXXX'x
willful failure to comply with any representation, warranty, covenant or
agreement set forth herein, CRLP shall be entitled to either (a) terminate this
Agreement upon notice to XXXX, following which neither party shall thereafter
have any further obligations under this Agreement; or (b) pursue all of its
available remedies at law.
22.3 The acceptance of the Deeds and/or the Contributed Interests by
CRLP shall be deemed a full performance and discharge of every agreement and
obligation of XXXX to be performed under this Agreement; PROVIDED, HOWEVER, that
any agreements and obligations of XXXX, CRLP and Cali to each other which are
specifically stated in this Agreement to survive the Closing or which by their
terms are to be, or may only be, performed after the Closing, shall survive the
Closing. The provisions of this Section 22.3 shall survive Closing.
23. EMPLOYEE MATTERS.
23.1 With respect to the Cali plans, programs and arrangements
listed on SCHEDULE 6.1(R)(I) and any vacation, sick time or other compensation
policy of Cali, which takes into account an employee's length of service, Cali
shall grant all New Cali Employees on and after the Closing Date credit for all
service with the Xxxx Entities, XXX and any affiliates thereof and their
respective predecessors prior to the Closing Date for purposes for which such
service was recognized by the Xxxx Entities, XXX, and any affiliates thereof
under the plans or programs listed on SCHEDULE 5.1(W)(I), including without
limitation the Cali 401(k) Plan. Cali shall have no liability to any current or
former employees of the Xxxx Entities, XXX, or any affiliate thereof who are not
New Cali Employees, including without limitation any liabilities which may arise
as a result of the consummation of the transactions contemplated by this
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Agreement, under any plans or programs listed on SCHEDULE 5.1(W)(I), or arising
under applicable federal or state law including without limitation under the
Worker Adjustment and Retraining Notification Act (WARN) and Consolidated
Omnibus Budget Reconciliation Act of 1985 (COBRA). The provisions of this
Section 23.1 shall survive the Closing.
23.2 Upon commencement of employment, New Cali Employees shall be
covered by the employee welfare plans maintained by Cali, including without
limitation, medical and health plans as described in this Section. Upon
commencement of participation by New Cali Employees in the Cali medical and
health plans, Cali shall (i) credit all New Cali Employees on and after the
Closing Date with any employee payments made under any medical or health plans
of any Xxxx Entity or XXX which have been paid in partial or full satisfaction
of deductible requirements under such medical or health plans for purposes of
satisfying deductible requirements under the corresponding Cali medical and
health plans, and (ii) waive any preexisting condition exclusion and
actively-at-work requirements (other than for New Cali Employees not
actively-at-work due to a disability which is expected to last more than five
(5) days) under the Cali plans and programs set forth on SCHEDULE 6.1(R)(I).
The Xxxx Entities and XXX shall provide Cali or shall cause its insurance
carrier to provide Cali with the applicable payment information as soon as
practicable following the Closing Date. Cali may, at its option, for a period
which ends no later than the December 31 following the Closing Date continue to
provide to New Cali Employees medical and health benefits substantially similar
to and on the same terms and conditions as some or all of such benefits
previously provided to New Cali Employees prior to the Closing Date by their
respective former employers.
23.3 The New Cali Employees will be hired directly by Cali and their
employment with any Xxxx Entity, XXX or any affiliate thereof shall terminate
and their employment with Cali shall begin as of the Closing Date. Cali shall
not be liable to any independent contractor of the Xxxx Entity, XXX or any
affiliate thereof or to any New Cali Employee or to any Xxxx Entity, XXX or any
affiliate thereof for any compensation, benefits or other liabilities related to
any employment or services performed, or otherwise, which were incurred or
accrued prior to the Closing Date, except for vacation time and any wages for
which an adjustment pursuant to Section 11.1(g) of this Agreement is being made.
Neither the Xxxx Entities nor XXX shall be liable to any New Cali Employees or
other personnel (i.e., independent contractors of the Xxxx Entities, XXX or any
affiliate thereof) for vacation time and wages pursuant to which CRLP receives a
credit under Section 11.1(g).
23.4 Cali shall not be required to assume with respect to any New
Cali Employee any agreement related to employment, compensation or benefits.
Cali shall cause its 401(k) Plan to accept transfers of account balances from
the Xxxx 401(k) Plan and the XXX 401(k) Plan by way of direct rollover. Except
as otherwise provided herein with respect to New Cali Employees, all liabilities
with respect to current or former employees of the Xxxx Entities, XXX or any
affiliate thereof, whether incurred under a plan or program listed on SCHEDULE
5.1(W)(I) or otherwise, are the sole responsibility of the Xxxx Entities, XXX or
any affiliate thereof. The provisions of this Section 23.4 shall survive the
Closing.
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23.5 Cali will credit New Cali Employees with any unused vacation
time as of the Closing Date.
24. NOTICE.
All notices, demands, requests, or other writings in this Agreement
provided to be given or made or sent, or which may be given or made or sent, by
either party hereto to the other, shall be in writing and shall be delivered by
depositing the same with any nationally recognized overnight delivery service,
or by telecopy or fax machine, in either event with all transmittal fees
prepaid, properly addressed, and sent to the following addresses:
If to Cali or CRLP: c/o Cali Realty Corporation
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
with a copy to: Pryor, Cashman, Xxxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx X. Xxxxxxxxx, Esq.
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
If to XXXX: The Xxxx Companies
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attn: Xx. Xxxxxxxx Xxxxx
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
and
If to XXX: Patriot American Management and Leasing Corporation
0000 XXX Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxxx
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(000) 000-0000 (tele.)
(000) 000-0000 (fax)
with a copy to: Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
or to such other address as either party may from time to time designate by
written notice to the other or to the Escrow Agent. Notices given by (i)
overnight delivery service as aforesaid shall be deemed received and effective
on the first business day following such dispatch and (ii) telecopy or fax
machine shall be deemed given at the time and on the date of machine transmittal
provided same is sent prior to 4:00 p.m. on a business day (if sent later, then
notice shall be deemed given on the next business day) and if the sending party
receives a written send confirmation on its machine and forwards a copy thereof
by regular mail accompanied by such notice or communication. Notices may be
given by counsel for the parties described above, and such Notices shall be
deemed given by said party, for all purposes hereunder.
25. DEVELOPMENT PROPERTY/HONEYWELL BUILDING.
The parties hereto acknowledge that a Xxxx Entity is contemplating
construction of an approximately 50,000 square foot expansion of a building (the
"EXPANSION SPACE") located on an Exchange Property, such building being commonly
known as the Honeywell Building (the "HONEYWELL BUILDING"). Notwithstanding the
fact that the Honeywell Building will be contributed to CRLP at the Closing,
XXXX hereby covenants and agrees to complete the construction of the Expansion
Space in a manner consistent with the Honeywell Building as it exists on the
date hereof, at its own cost and expense (including obtaining all requisite
building department sign-offs and other municipal approvals or amendments) and
utilizing its own personnel. In consideration for such completion of the
Expansion Space, Cali will pay to a designee of XXXX the quotient of the annual
operating income on a stabilized basis of the Expansion Space in dollars,
divided by eight and ninety-three one hundredths (8.93%) percent. The Expansion
Space shall be deemed completed and the additional consideration payable (the
"HONEYWELL CONSIDERATION"), upon the later to occur of (i) receipt of an amended
certificate of occupancy for the Honeywell Building covering the Expansion Space
and (ii) the date on which Honeywell accepts possession of the Expansion Space
pursuant to a fully executed lease (or amendment, modification or expansion of
an existing lease) for the Expansion Space and has commenced paying rent
thereunder. CRLP agrees to cooperate with XXXX, at XXXX'x cost and expense, in
all reasonable respects, for obtaining all building department sign-offs and all
municipal approvals, or amendments thereto, required in connection with the
Expansion Space. All tenant leasing commissions and tenant improvement
obligations related to the Expansion
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Space shall be paid by XXXX. The Honeywell Consideration shall be paid by
Xxxx-Xxxx to XXXX, at XXXX'x option, in either cash, Common Units or a
combination of the two; provided, however, Common Units paid to XXXX as part
of the Honeywell Consideration shall be valued at ninety (90%) percent of the
average closing price of the common stock of Xxxx-Xxxx, as reported in the
Wall Street Journal, calculated as of the payment date of the Honeywell
Consideration based upon the preceding five (5) consecutive trading days'
closing price.
26. CORPORATE NAME CHANGE; CHANGE IN MANAGEMENT; OTHER
ARRANGEMENTS.
26.1 Prior to Closing, Cali and CRLP shall, at their own expense,
make such filings and proxy solicitations as are necessary to effect the
transactions contemplated herein and to change their respective names to
"Xxxx-Xxxx Realty Corporation" and "Xxxx-Xxxx Realty, L.P." For purposes of
this Section 26, Xxxx-Xxxx Realty Corporation and Xxxx-Xxxx Realty, L.P. are
collectively referred to as "Xxxx-Xxxx". If Cali shareholders do not approve of
the name changes described herein, Cali shall operate as a "d/b/a" under the
name "Xxxx-Xxxx" and such shareholder approval shall be sought at each annual
shareholder meeting and as part of any proxy solicitation at a special meeting
for so long as it takes to obtain the requisite consent. Xxxx-Xxxx shall, at
Cali's option, continue to trade under the New York Stock Exchange symbol "CLI."
26.2 Because this Agreement contemplates the exchange of Units and
Warrants representing a substantial equity interest, the parties hereto have
agreed as follows:
(i) As of the Closing, the Board shall be comprised of
thirteen (13) directors. Three (3) of such members of the Board shall be
designated by the Xxxx Group and shall initially be Xxxxxxx Xxxx, Xxxxx Xxxx and
Xxxxxxxx Xxxxx (the "XXXX BOARD MEMBERS"). Xxxxxxx Xxxx and Xxxxx Xxxx shall
serve initial terms which shall expire in May 1999. Xxxxxxxx Xxxxx shall serve
an initial term which shall expire in May 2000. If any Xxxx Board Member shall
withdraw for any reason, the Xxxx Group shall have the right to designate such
withdrawing director's replacement on behalf of the Xxxx Group. The Xxxx Group,
shall have the right to re-nominate such three (3) members of the Board or
replacements selected by the Xxxx Group for re-election to the Board when their
terms expire so long as Xxxx'x Significant Interest (as defined below) is
maintained by the Xxxx Group. Three (3) of such members of the Board shall be
designated by Cali and shall initially be Xxxxxx X. Xxxx, Xxxx X. Xxxx and
Xxxxxx Xxxxxxxx (the "CALI BOARD MEMBERS"). Xxxx X. Xxxx shall remain the
Chairman of the Board. It is understood that if any Cali Board Member shall
withdraw for any reason, Cali shall have the right to designate such withdrawing
director's replacement. The remaining seven (7) directors shall be independent
outside directors. They shall include three (3) existing members of Cali's
Board: Xxxxxxx Xxxxx, Xxxxx Xxxx and Xxxx Xxxxxxxxxxx; and four (4) independent
members suggested by the Xxxx Group and reasonably approved by Cali.
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(ii) As of the Closing, the Board shall create an Executive
Committee. Xxxxxxx Xxxx will serve as Chairman of the Executive Committee. The
Executive Committee will consist of Xxxxxxx Xxxx, Xxxxxxxx Xxxxx, Xxxxxx X. Xxxx
and Xxxx X. Xxxx. Xxxx X. Xxxx and Xxxxxxx Xxxx (or, if either individual shall
not be alive, his respective successor) shall have the right respectively to
appoint a replacement for any Executive Committee member designated by them who
shall withdraw from the Executive Committee.
(iii) Xxxxxx X. Xxxx shall remain Chief Executive Officer and
Xxxxxxxx Xxxxx shall be appointed President and Chief Operating Officer by the
Board. Xxxxxxxx Xxxxx shall execute at Closing an employment agreement with
Cali on substantially the same terms, compensation package and options as
provided to Xxxxxx X. Xxxx and otherwise mutually agreeable to Xxxxxxxx Xxxxx
and Xxxx-Xxxx.
(iv) Cali's existing executive officers will retain their
current positions and responsibilities; except that Xxxxxx X. Xxxx shall resign
as President, but will remain Chief Executive Officer, Xxxxx Xxxx shall resign
as Chief Operating Officer and Xxxx X. Xxxx shall resign as Chief Administrative
Officer, provided, however, Xxxxx Xxxx and Xxxx X. Xxxx shall remain senior
executive officers of the Xxxx-Xxxx with appropriate titles to be determined by
the parties hereto.
(v) The special rights granted to the Xxxx Group under this
Section 26 are specifically conditioned on the continuation of Xxxx'x
Significant Interest. "XXXX'X SIGNIFICANT INTEREST" shall mean legal and
beneficial ownership, in the aggregate, of not less than 3,174,603 shares of
Common Stock and/or Units (on a fully converted basis) by Xxxx Xxxx, Xxxxx Xxxx,
Xxxxxxxxx Xxxx and Xxxxxxx Xxxx, after applying the attribution rules set forth
on SCHEDULE 26.2(V), subject to adjustment for stock splits, stock dividends and
other customary and similar stock dilutions. Such legal and beneficial
ownership may not include Units subject to any of the arrangements contemplated
by Section 18.5(i) hereof unless such arrangements result in recourse liability
to any member of the Xxxx Group. In the event that Xxxx'x Significant Interest
shall no longer be retained, the Xxxx Group and/or its designees shall be
entitled only to those rights accorded to every other shareholder of Xxxx-Xxxx,
and each of two (2) of the Xxxx Board Members (other than Xxxxxxxx Xxxxx) shall,
at the option of the Cali Board Members, resign from the Board of Directors of
Xxxx-Xxxx on the three (3) month and six (6) month anniversary respectively, of
the date on which the Xxxx Significant Interest is no longer retained; PROVIDED,
HOWEVER, notwithstanding anything contained herein to the contrary any such
modification to Xxxx'x Significant Interest shall have no effect on Xxxxxxxx
Xxxxx or his management status and he shall not be required to resign from the
Board of Directors of Xxxx-Xxxx.
(vi) So long as the Xxxx Group retains Xxxx'x Significant
Interest, Cali shall support the renomination of Xxxxxxx Xxxx, Xxxxx Xxxx and
Xxxxxxxx Xxxxx (and any successor appointed by the Xxxx Group) for successive
three-year terms upon the
71
expiration of each three-year term. In addition, if either Xxxxxxx Xxxx, Xxxxx
Xxxx or Xxxxxxxx Xxxxx, or any of them, die, voluntarily resign or otherwise
become unable to serve so long as the Xxxx Group retains the Xxxx Significant
Interest, Cali shall support the nomination of the individual selected by the
survivors of Xxxxxxx Xxxx, Xxxxx Xxxx or Xxxxxxxx Xxxxx to fill the vacancy
created by such death, resignation or inability serve. If either Xxxx X. Xxxx,
Xxxxxx X. Xxxx or Xxxxxx Xxxxxxxx, or any of them, die, voluntarily resign or
otherwise become unable to serve so long as the Xxxx Group retains the Xxxx
Significant Interest, the Xxxx Board Members (to the extent any remain) shall
support the nomination of the individual selected by the survivors of Xxxx X.
Xxxx, Xxxxxx X. Xxxx or Xxxxxx Xxxxxxxx to fill the vacancy created by such
death, resignation or inability serve.
27. RESTRICTIONS ON SALE OF THE PROPERTY
27.1 CRLP, Cali and their Subsidiaries and affiliates (including,
without limitation, any Permitted Assignee) may not dispose of or distribute any
of the Exchange Property prior to the dates (the "RESTRICTED PERIOD") set forth
on SCHEDULE 27.1 with respect to each Exchange Property (which schedule provides
for an average of approximately seven and one-half years following the Closing
Date) without the express written consent of Xxxxxxx Xxxx (or, if he shall not
be alive, his successor) (it being understood that if any Exchange Property
listed on SCHEDULE 27.1 becomes an Eliminated Property, such schedule shall not
be amended and if such property is thereafter acquired by CRLP pursuant to
Section 3.4 of this Agreement, the date on SCHEDULE 27.1 shall apply to such
property) except (i) in connection with a tax-free transaction which does not
result in recognition of Built-in-Gain (as defined below) by any holders of the
Units; (ii) in the event a taxable sale or disposition of any of the Exchange
Property would not result in recognition of Built-in-Gain; (iii) in case of a
disposition that is otherwise in compliance with the provisions of this Section
27; or (iv) if CRLP promptly pays to the Xxxx Contributors or holders of the
Units an amount equal to the sum of (A) the federal, state, and local income
taxes payable by the holders of the Units resulting from the recognition of the
Built-in Gain triggered by such sale or disposition and (B) an additional
payment in an amount equal to the amount such that after payment by the holders
of the Units of all taxes (including interest or penalties) on amounts received
under Section 27.1 (iv)(A) and this Section (iv)(B) the holders of the Units
retain an amount equal to the amount described in Section 27.1(iv)(A). For
purposes of calculating the amounts payable pursuant to clause (iv) of the
preceding sentence, the amount of taxes payable by a holder of Units shall be
calculated by assuming a tax rate equal to the highest combined marginal rate of
federal, state and local tax applicable to an individual in the jurisdiction in
which such holder of Units is a taxpayer (and if such taxpayer, either directly
or indirectly, is subject to tax in more than one state or local jurisdiction,
the state or local tax rate to be used in the foregoing combined marginal rate
shall be the highest rate of tax in such jurisdiction) and by assuming that such
individual has no tax attributes that would otherwise reduce such tax payments.
For purposes of this Agreement, the term "Built-in Gain" for any Exchange
Property shall mean the excess, if any, of the fair market value of such
Exchange Property on the Closing Date over such Exchange Property's adjusted tax
basis for federal income tax purposes on such date. XXXX agrees to cooperate
with Cali and CRLP regarding the calculation of the amount of
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actual Built-in Gain attributable to any Exchange Property recognized upon any
transfer. In the event an Exchange Property is sold with the consent of Xxxxxxx
Xxxx (or, if he shall not be alive, his successor) prior to the Restricted
Period set forth on SCHEDULE 27.1 for such Exchange Property, then the
Restricted Period for other Exchange Property (set forth in SCHEDULE 27.1 and
designated by Xxxxxxx Xxxx) having an Allocated Property Value approximately
equal to the Allocated Property Value of the first Exchange Property being sold
shall be extended for a time period equal to the period from the date on which
the sale of such Exchange Property closes to the end of the Restricted Period
for such Exchange Property. The provisions of this Section 27.1 shall survive
the Closing.
27.2 During the Restricted Period, CRLP, Cali and their Subsidiaries
(including, without limitation, any Permitted Assignee), may dispose of any of
the Exchange Property at any time in connection with (i) the sale of all or
substantially all of the properties owned by CRLP under such terms and
conditions which the Board, in its sole judgment, determines to be in the best
interests of Cali and its public stockholders, or (ii) a sale (including without
limitation a transfer to a secured lender in lieu of foreclosure) which the
Board, in its sole judgment, determines is reasonably necessary (1) to satisfy
any material monetary default on any unsecured debt, judgment or liability of
CRLP, Cali or any Subsidiary Partnership when they become due (at maturity or
otherwise) or (2) to cure or satisfy any material monetary default on any
mortgage, secured by the Exchange Property; provided, however, that no such
sales will be made under clause (ii) unless CRLP is unable to settle or
refinance any such debts, judgments or liabilities, or cure or satisfy any such
defaults, after making commercially reasonable efforts to do so under then
prevailing market conditions. In the event the Board, after CRLP has made the
commercially reasonable efforts described in the preceding sentence, in its sole
judgment, determines that it is reasonably necessary to dispose of any of the
Exchange Property to satisfy a material monetary default on any unsecured debt,
judgment or liability of CRLP when it becomes due (at maturity or otherwise),
CRLP covenants and agrees that it shall treat all of its properties
proportionately, including the Exchange Property, in its determination of what
properties to dispose of to satisfy such material debt, judgment or liability
and shall use commercially reasonable efforts to minimize any adverse tax
consequences to holders of the Units and all members of the Cali Group or the
XXXX Group. Such proportionate treatment shall mean that the ratio of the
unencumbered fair market value of the Exchange Property that is sold over the
unencumbered fair market value of the total amount of property that is sold
shall be no greater than the ratio of the unencumbered fair market value of the
total Exchange Property over the unencumbered fair market value of the total
CRLP/Cali portfolio. In the case of any disposition of any of the Exchange
Property pursuant to this Section 27.2, holders of the Units may attempt to
obtain title to the Exchange Property in question so long as any equity in the
Exchange Property which CRLP may otherwise be seeking to preserve is not lost or
jeopardized. Moreover, in the event of an anticipated transfer of any of the
Exchange Property to a secured lender in lieu of foreclosure or foreclosure,
CRLP shall use commercially reasonable efforts to provide holders of the Units
the right to (a) cure the default including the right to loan CRLP the funds
necessary to cure the default on an unsecured basis, as well as the right to
limit such funds to CRLP and to receive security for any such loan from CRLP (or
its appropriate affiliate) in the
73
form of a second mortgage secured solely by such Exchange Property (but only if
the lender or lenders holding any prior mortgage or mortgages on the relevant
Exchange Property expressly consent in writing to the grant of the second
mortgage, provided that neither such loan, whether secured or unsecured by the
holders of the Units nor the granting of any such second mortgage to such
holders violates any covenant in any loan agreement of CRLP or any of its
affiliates); (b) acquire, for one Unit (if the value of a Unit at the time of
such acquisition is not more than one-thousand ($1,000.00) dollars or, if so,
then for a fraction of a Unit, such fraction's value being equal to one-thousand
($1,000) dollars), such Exchange Property from CRLP subject to the debt or
liability; or (c) permit holders of the Units to exercise CRLP's right of
redemption with respect to such Exchange Property; PROVIDED, HOWEVER, that CRLP
shall not have any obligation to grant holders of the Units the rights described
in clauses (a) and/or (b) of this sentence until holders of the Units (whose
financial position and resources as determined by CRLP using commercially
reasonable standards to be satisfactory for the purpose of acting as indemnitors
pursuant to this proviso) have agreed with CRLP in writing to indemnify and hold
harmless CRLP, Cali and their affiliates from and against all costs (including
reasonable attorneys fees), expenses, taxes (including without limitation any
deed, mortgage or real estate transfer taxes), claims, judgments, liabilities or
damages incurred or arising from or in connection with or attributable to or
resulting from the grant or exercise of such rights, or the acquisition of such
Exchange Property by holders of the Units, but only to the extent such costs
would not have been incurred otherwise.
27.3 After the expiration of the Restricted Period, CRLP, Cali may
dispose of any of the Exchange Property at any time; PROVIDED HOWEVER, that,
CRLP, Cali and their Subsidiaries shall use commercially reasonable efforts to
prevent any such sale, transfer or other disposition of the Exchange Property,
or any distribution of the Exchange Property which is treated as a taxable
disposition, from resulting in the recognition of Built-in-Gain by holders of
the Units, and PROVIDED FURTHER that holders of the Units shall have a right of
first offer as set forth in Section 27.4 below.
27.4 In the event CRLP desires to sell or otherwise desires to
dispose of, or receives an offer to purchase any of, the Exchange Property
pursuant to Section 27.2 or 27.3 above, CRLP shall give notice (the "OFFERING
NOTICE") thereof to holders of the Units. The Offering Notice shall specify the
nature of the sale, and the consideration and other terms upon which it intends
to undertake such sale. Within thirty (30) days thereafter, holders of the
Units may elect, by notice to CRLP, to purchase the Exchange Property which is
the subject of the Offering Notice. If holders of the Units elect to so
purchase, then such purchase shall be consummated on the terms and conditions
set forth in the Offering Notice; PROVIDED, HOWEVER, to the extent that the
Exchange Property in question is then subject to separately allocated debt and
the lender thereof consents to holders of the Units assuming such debt, or
acquiring such Exchange Property subject to such debt, at no cost, expense or
liability to CRLP (or if there is any such cost, liability or expense, holders
of the Units shall have reimbursed CRLP for all such cost, liabilities or
expenses and agreed in writing with CRLP to indemnify and hold harmless CRLP
from and against any additional costs, liabilities or expenses arising from or
in connection
74
with or attributable to (i) such assumption, (ii) the acquisition of the
Exchange Property subject to such debt or (iii) the payment of any such costs,
liabilities or expenses, but only to the extent such costs would not have been
incurred otherwise), CRLP will convey the Exchange Property subject to such
debt. Holders of the Units may use their Units as currency, in whole or in
part, in connection with the purchase of any of the Exchange Property from CRLP
pursuant to this Section 27.4. In addition, as part of a transfer of any
Exchange Property pursuant to Section 27.2(ii) (1) or (2), if holders of the
Units can cause the third party which is otherwise to obtain title to any
Exchange Property to accept Units, in whole or in part, in lieu of obtaining
title to such Exchange Property, holders of the Units shall have the right to do
so provided that such third party agrees to be bound by all of the terms and
conditions of the OP Agreement and performs in accordance therewith, including,
without limitation, performing the requirements pertaining to a transfer of
Units (other than the need to obtain the consent of the general partner of CRLP,
which consent is deemed to be given pursuant to the terms of Section 27.4); in
such event, title to the Exchange Property which would otherwise have been
transferred to such third party shall be transferred to holders of the Units.
If within the thirty (30) day period during which holders of the Units have the
right to elect to purchase the Exchange Property for sale under the Offering
Notice, holders of the Units do not make the election or fail to respond to the
Offering Notice, then CRLP may undertake to sell such Exchange Property on such
terms and conditions as it shall elect; PROVIDED, HOWEVER, that the sale of any
of the Exchange Property to which this Section 27.4 applies shall not be
consummated at less than 95% of the price as specified in the Offering Notice
unless CRLP again offers the Exchange Property to holders of the Units upon such
more favorable terms and conditions (in which case the thirty (30) day period
described above shall be reduced to ten (10)). If holders of the Units notify
CRLP of their intention not to purchase the Exchange Property as set forth in
the revised Offering Notice, then CRLP may consummate the sale at any time
thereafter, provided that such sale shall not be consummated at less than 95% of
the price specified in the revised Offering Notice unless CRLP again complies
with the provisions of this Section 27.4.
27.5 In the event that holders of the Units elect to purchase an
Exchange Property pursuant to this Section 27, CRLP agrees to cooperate with
holders of the Units, at no cost, expense or liability to CRLP, to cause debt to
be placed on the Property immediately prior the closing of the conveyance of
said Exchange Property, provided that (i) holders of the Units arrange for such
debt at their sole cost and expense, (ii) holders of the Units are
unconditionally prepared to close such conveyance immediately after said closing
of the loan, (iii) holders of the Units agree to assume the debt and thereafter
assume same at the closing and (iv) CRLP is released of all liability thereunder
immediately following the closing of the conveyance of the Exchange Property.
75
28. SPECIAL ENVIRONMENTAL MATTERS
To the extent that an environmental condition is discovered at any
Real Property, prior to the Closing Date, which is not a material adverse
environmental condition (as set forth in Section 3.4(a)), CRLP and XXXX shall
negotiate in good faith with each other to reach an agreement for XXXX to
correct, investigate, remediate or cleanup such environmental condition or
conditions, including without limitation, the cleanup standards to be used as
well as potential limitations on the rights and remedies of the parties, which
agreement shall be incorporated in SCHEDULE 28.1 prior to the Closing and shall
be executed by the parties at the Closing. If CRLP and XXXX are unable to reach
an agreement, CRLP may, eliminate any such Real Property from the transaction
upon written notice to XXXX, and CRLP shall proceed to consummate this
transaction provided that the Tainted Property eliminated pursuant to Section
3.4(a) and any Real Property eliminated pursuant to this Section shall in the
aggregate constitute less than five (5%) percent of the aggregate Allocated
Property Value for the Exchange Property. In such event, the Exchange
Consideration shall be reduced by the Allocated Property Value attributable to
each such eliminated Real Property in accordance with Section 2.6(b).
29. MISCELLANEOUS
29.1 If any instrument or deposit is necessary in order to obviate a
defect in or objection or exception to title, the following shall apply: (i)
any such instrument shall be in such form and shall contain such terms and
conditions as may be required by the Title Company to omit any defect, objection
or exception to title, (ii) any such deposit shall be made with the Title
Company, and (iii) XXXX agrees to execute, acknowledge and deliver any such
instrument and to make any such deposit.
29.2 This Agreement constitutes the entire agreement between the
parties and incorporates and supersedes all prior negotiations and discussions
between the parties. This Agreement shall be binding upon and inure solely to
the benefit of each party hereto and their successors and assigns, and nothing
in the Agreement express or implied, is intended to confer upon any other person
any rights or remedies of any nature whatsoever under or by reason of this
Agreement.
29.3 This Agreement cannot be amended, waived or terminated orally,
but only by an agreement in writing signed by the party to be charged.
29.4 This Agreement shall be interpreted and governed by the laws of
the State of New York and shall be binding upon the parties hereto and their
respective successors and assigns.
29.5 The caption headings in this Agreement are for convenience only
and are not intended to be part of this Agreement and shall not be construed to
modify, explain or alter any of the terms, covenants or conditions herein
contained.
76
29.6 If any term, covenant or condition of this Agreement is held to
be invalid, illegal or unenforceable in any respect, this Agreement shall be
construed without such provision.
29.7 Prior to and after the Closing, each party shall, from time to
time, execute, acknowledge and deliver such further instruments, in recordable
form, if necessary, and perform such additional acts, as the other party may
reasonably request in order to effectuate the intent of this Agreement, within
thirty (30) days of the request. Nothing contained in this Agreement shall be
deemed to create any rights or obligations of partnership, joint venture or
similar association between XXXX and CRLP. This Agreement shall be given a fair
and reasonable construction in accordance with the intentions of the parties
hereto, and without regard to or aid of canons requiring construction against
XXXX, CRLP or the party whose counsel drafted this Agreement. The provisions of
this Section 29.7 shall survive the Closing.
29.8 This Agreement shall not be effective or binding until such
time as it has been executed and delivered by all parties hereto. This
Agreement may be executed by the parties hereto in counterparts, all of which
together shall constitute a single Agreement.
29.9 All references herein to any Section, Schedule or Exhibit shall
be to the Sections of this Agreement and to the Schedules and Exhibits annexed
hereto unless the context clearly dictates otherwise. All of the Schedules and
Exhibits annexed hereto are, by this reference, incorporated herein.
29.10 In the event of any litigation or alternative dispute
resolution between CRLP and XXXX in connection with this Agreement or the
transaction contemplated herein, the non-prevailing party in such litigation or
alternative dispute resolution shall be responsible for payment of all expenses
and reasonable attorneys' fees incurred by the prevailing party. The provisions
of this Section 29.10 shall survive the Closing.
29.11 The parties agree that XXXX shall not be required to
contibute to CRLP any individual Property by deed, assignment of Ground Lease
or assignment of partnership interest unless and until it has received the
requisite partner consent to contribute the Property in accordance with
Sections 1.2 or 1.3.
29.12 Whenever used herein, the singular number shall include the
plural, the plural shall include the singular, and the use of any gender shall
be applicable to all genders.
77
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CALI REALTY, L.P.
By: Cali Realty Corporation
By:
----------------------------------------
Xxxxxx X. Xxxx, Chief Executive Officer
CALI REALTY CORPORATION
By:
----------------------------------------
Xxxxxx X. Xxxx, Chief Executive Officer
THE MK CONTRIBUTORS
----------------------------------------
Xxxxxxx Xxxx
----------------------------------------
Xxxxx Xxxx
----------------------------------------
Xxxxx Xxxx
----------------------------------------
Xxxxxxx Xxxx
----------------------------------------
Xxxxxxxx Xxxxx
00
Xxxx Xxxxxxx Xxxxxx Property Co.
By: Xxxx Xxxxxxxx Park, its general partner
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
Xxxx Paramus Affiliates
By: Xxxx Paramus Co., its general partner
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
000 Xxxxxxxxx Xxxxxx Associates
By: Xxxx Properties Co. No. 5., its general
partner
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
By:
----------------------------------------
Name: Xxxxx Xxxx
Title: General Partner
Xxxx Paramus Parkway Co.
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
79
Xxxx F Properties Co.
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
Xxxx Metropolitan LTD.
By: 501 Xxxxxxx Corp., its general partner
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
Xxxx Willowbrook Co.
By: Xxxx Properties Co. No. 3, its general
partner
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
By:
----------------------------------------
Name: Xxxxx Xxxx
Title: General Partner
Xxxx-R Company No. 1
By: Xxxx Properties Co. No. 3, its general
partner
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
By:
----------------------------------------
Name: Xxxxx Xxxx
Title: General Partner
80
Xxxx Xxxxxxxxxx XX
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
By:
----------------------------------------
Name: Xxxxx Xxxx
Title: General Partner
Xxxx Xxxxxxxxxxx Co.
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
Xxxx Properties Co. No.3
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
By:
----------------------------------------
Name: Xxxxx Xxxx
Title: General Partner
81
Xxxx Properties Co.
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
By:
----------------------------------------
Name: Xxxxx Xxxx
Title: General Partner
Xxxx Properties Co. No. 5
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
By:
----------------------------------------
Name: Xxxxx Xxxx
Title: General Partner
Airport Properties Associates, LLC
By: Xxxx Properties Co.
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
By:
----------------------------------------
Name: Xxxxx Xxxx
Title: General Partner
82
Xxxx Properties Co. No. 11
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
By:
----------------------------------------
Name: Xxxxx Xxxx
Title: General Partner
000 Xxxxxxxx Xxxxx Co., LP
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
By:
----------------------------------------
Name: Xxxxx Xxxx
Title: General Partner
000 Xxxxxxxx Xxxxx Co., LP
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
By:
----------------------------------------
Name: Xxxxx Xxxx
Title: General Partner
83
Saddlemack Associates, LP
By: Xxxx Saddle River Limited Partnership,
its general partner
By: Saddle Corporation, its general partner
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
Xxxx Xxxxxxxxx, LP
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
By:
----------------------------------------
Name: Xxxxx Xxxx
Title: General Partner
000 Xxxxxxx Xxxxxx LLC
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: Member
Xxxx Glendale, LP
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
By:
----------------------------------------
Name: Xxxxx Xxxx
Title: General Partner
84
Xxxxxx-Xxxxxx LLC
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
Morristown Ten
By: Xxxxxx Properties Co. No. 15, LLC,
its general partner
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
Manhasset Associates
By: Xxxxxxxx and Associates
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
By: Manhasset Property Co.
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
85
Xxxx Xxxxxxxxx Xxxxxx Plains
By: Xxxx Properties Co. No. 3, its general
partner
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
By:
----------------------------------------
Name: Xxxxx Xxxx
Title: General Partner
Xxxx North Hills
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
By:
----------------------------------------
Name: Xxxxx Xxxx
Title: General Partner
9060 East Via Xxxxx Co., LTD
By:
----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
By:
----------------------------------------
Name: Xxxxx Xxxx
Title: General Partner
86
THE PATRIOT CONTRIBUTORS
---------------------------
Xxxxxxx Xxxx
THE PATRIOT ENTITIES
Atrium at Xxxxxxx Ridge Investors, L.P.
By: Atrium Operating Corp., its general partner
By:
----------------------------------------
Name:
Title:
Xxxxxxxxx Corporate Center Investors, L.P.
By: Xxxxxxxxx Operating Corp., its general
partner
By:
----------------------------------------
Name:
Title:
Bexar Plaza Investors, L.P.
By: Bexar Plaza Operating Corp., its general
partner
By:
----------------------------------------
Name:
Title:
87
Brandeis Building Investors, L.P.
By: Brandeis Operating Corp., its general partner
By:
----------------------------------------
Name:
Title:
Patriot Century Investors, L.P.
By: Century Operating Corp., its general partner
By:
----------------------------------------
Name:
Title:
Patriot Century III Investors, L.P.
By: Patriot Century III Operating Corp., its
general partner
By:
----------------------------------------
Name:
Title:
Patriot Commerce Investors, L.P.
By: Patriot Commerce Operating Corp., its general
partner
By:
----------------------------------------
Name:
Title:
88
Cornerstone Regency Investors, L.P.
By: Cornerstone Regency Operating Corp.,
its general partner
By:
----------------------------------------
Name:
Title:
Katy Plaza Investors, L.P.
By: Katy Plaza Operating Corp., its general
partner
By:
----------------------------------------
Name:
Title:
Landmark Center Investors, L.P.
By: Landmark Operating Corp., its general partner
By:
----------------------------------------
Name:
Title:
Patriot Memorial Investors, L.P.
By: Patriot Memorial Operating Corp., its general
partner
By:
----------------------------------------
Name:
Title:
89
Metroport Investors, L.P.
By: Metroport Operating Corp., its general
partner
By:
----------------------------------------
Name:
Title:
3100 Monticello Investors, L.P.
By: 3100 Monticello Operating Corp., its general
partner
By:
----------------------------------------
Name:
Title:
Patriot Santa Fe Investors, L.P.
By: Santa Fe Operating Corp., its general partner
By:
----------------------------------------
Name:
Title:
Western Plaza Investors, L.P.
By: Western Plaza Operating Corp., its general
partner
By:
----------------------------------------
Name:
Title:
Xxxxxx Building Investors, L.P.
By: Xxxxxx Operating Corp., its general partner
By:
----------------------------------------
Name:
Title:
90
Patriot Preston Investors, L.P.
By: Patriot Preston Operating Corp., its general
partner
By:
----------------------------------------
Name:
Title:
Patriot Republic Investors, L.P.
By: Patriot Republic Operating Corp., its general
partner
By:
----------------------------------------
Name:
Title:
Patriot St. Xxxxx I Investors, L.P.
By: Patriot St. Xxxxx I Operating Corp., its
general partner
By:
----------------------------------------
Name:
Title:
Patriot St. Xxxxx XX Investors, L.P.
By: Patriot St. Xxxxx XX Operating Corp., its
general partner
By:
----------------------------------------
Name:
Title:
Town and Country Central One Investors, L.P.
By: Town and Country Operating Corp., its general
partner
By:
----------------------------------------
Name:
Title:
91
TriWest Associates, L.P.
By: TriWest Operating Corp., its general partner
By:
----------------------------------------
Name:
Title:
Patriot Westage Center, L.P.
By: Patriot Westage Center Operating Corp.,
its general partner
By:
----------------------------------------
Name:
Title:
PATRIOT AMERICAN MANAGEMENT
AND LEASING CORPORATION
By:
----------------------------------------
Name:
Title:
92
