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EXHIBIT 99.2
ESTOPPEL AND RELEASE
THIS ESTOPPEL AND RELEASE (this "Agreement") is made and entered into
as of the 23rd day of May, 2000 by and between JDN Development Company, Inc.
("JDN Development") and JDN Realty Corporation ("JDN Realty") and their
Affiliates (collectively, "JDN"), Wal-Mart Stores, Inc. ("Wal-Mart Stores") and
Wal-Mart Real Estate Business Trust (Wal-Mart Trust"; collectively with Wal-Mart
Stores, "Wal-Mart") and Xxxx'x Companies, Inc. ("Xxxx'x Companies") and Xxxx'x
Home Centers, Inc. ("Xxxx'x Home Centers"; collectively with Xxxx'x Companies,
"Lowe's").
W I T N E S S E T H:
WHEREAS, as of the date of this Agreement, Wal-Mart and JDN are parties
to written leases of land and related improvements (the "Existing Wal-Mart
Leases"), including, without limitation, the Existing Wal-Mart Leases listed on
Exhibit A-1 hereto;
WHEREAS, as of the date of this Agreement, Lowe's and JDN are parties
to written leases of land and related improvements (the "Existing Lowe's
Leases"), including, without limitation, the Existing Lowe's Leases listed on
Exhibit A-2 hereto (the Existing Lowe's Leases, together with the Existing
Wal-Mart Leases, shall be collectively referred to as the "Existing Leases");
WHEREAS, prior to the date of this Agreement, Wal-Mart has purchased
land and related improvements from JDN (the "Wal-Mart Purchases"), including,
without limitation, the Wal-Mart Purchases listed on Exhibit B-1 hereto;
WHEREAS, prior to the date of this Agreement, Lowe's has purchased land
and related improvements from JDN (the "Lowe's Purchases"), including, without
limitation, the Lowe's Purchases listed on Exhibit B-2 hereto (the Lowe's
Purchases, together with the Wal-Mart Purchases, shall collectively be referred
to as the "Purchases");
WHEREAS, in addition to the Existing Leases and the Purchases, prior to
the date of this Agreement, JDN has entered into and executed written
development agreements, easements, restrictive covenants, contracts and other
leases, transactions and business arrangements with Wal-Mart and Lowe's (the
"Other Transactions");
WHEREAS, prior to the date of this Agreement, JDN and Wal-Mart have
entered into and executed written development agreements, purchase agreements
and other written agreements with respect to projects not completed as of the
date of this
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Agreement, including, without limitation, the transactions listed on Exhibit
C-1 hereto (the "Pending Wal-Mart Transactions");
WHEREAS, prior to the date of this Agreement, JDN and Lowe's have
entered into and executed written development agreements, purchase agreements
and other written agreements with respect to projects not completed as of the
date of this Agreement (the "Pending Lowe's Transactions"), including, without
limitation, the transactions listed on Exhibit C-2 hereto (the Pending Lowe's
Transactions, together with the Pending Wal-Mart Transactions, shall be
collectively referred to as the "Pending Transactions");
WHEREAS, JDN and Wal-Mart have reached agreement in principal with
respect to the sale to Wal-Mart of seven (7) Wal-Mart stores for an aggregate
purchase price of $71,750,000 on the terms set forth in that certain Non-Binding
Letter of Intent by and between JDN and Wal-Mart dated March 27, 2000 (the
"Approved Wal-Mart Sale"); however, the Approved Wal-Mart Sale, or any portion
thereof, is subject to the negotiation and finalization of definitive written
agreements relating thereto and the satisfaction of all conditions in connection
therewith; provided, however, that the purchase price for each of the seven
Wal-Mart stores has been agreed to by the parties and will not be subject to
further negotiation.
WHEREAS, as of the date of this Agreement, JDN and Wal-Mart have
discussed and/or are in the process of negotiating and documenting certain
leases, development agreements, purchases and other transactions (the "Proposed
Wal-Mart Transactions");
WHEREAS, as of the date of this Agreement, JDN and Lowe's have
discussed and/or are in the process of negotiating and documenting certain
leases, development agreements, purchases and other transactions (the "Proposed
Lowe's Transactions")(the Proposed Lowe's Transactions, together with the
Proposed Wal-Mart Transactions, shall collectively be referred to as the
"Proposed Transactions");
WHEREAS, in connection with various Existing Leases, Purchases, Other
Transactions, and Pending Transactions (collectively, the "Transactions"),
certain JDN Development representatives misrepresented to Wal-Mart and Lowe's
JDN's actual land costs, site work costs and/or construction costs and the
ownership of certain outparcels, which misrepresentations were made prior to
April 10, 2000 and which in certain instances have been used in computing and
negotiating lease terms and purchase prices in one or more ways, including,
without limitation, by (a) including in JDN's land cost the cost of certain
outparcels which had been conveyed to others; (b) including in JDN's land cost
the value of site work done on outparcels owned by others; (c) misrepresenting
JDN's actual land cost; (d) misrepresenting the development and/or construction
costs of site and other construction work performed in connection with the
Transactions at issue; and (e) including in JDN's land cost commissions and fees
paid to certain employees (collectively, herein referred to as the
"Discrepancies");
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WHEREAS, both Wal-Mart and Lowe's have independently determined and
claim that as a result of the Discrepancies each of Wal-Mart and Lowe's has
suffered damages significantly in excess of Five Million Dollars;
WHEREAS, despite the Discrepancies, JDN, Lowe's and Wal-Mart agree that
the Existing Leases, Purchases, Other Transactions and Pending Transactions have
been and/or will be beneficial to all parties (as applicable);
WHEREAS, JDN, Lowe's and Wal-Mart desire that (i) JDN, Lowe's and
Wal-Mart re-affirm the Existing Leases, Purchases, Other Transactions and
Pending Transactions effective as of their original execution date or the
original closing date, (ii) Lowe's and Wal-Mart and JDN make certain agreements
with respect to the Proposed Transactions as hereinafter set forth, (iii) Lowe's
and Wal-Mart and JDN grant releases with respect to the Discrepancies, and (iii)
JDN compensate Lowe's and Wal-Mart as set forth below.
NOW, THEREFORE, for and in consideration of the payment of sums set
forth herein, the promises, covenants and representations contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by all the parties, Wal-Mart, Lowe's and JDN hereby agree as
follows:
1. Estoppel.
(a) Notwithstanding the Discrepancies, JDN, Wal-Mart and
Lowe's individually affirm that each of the Existing
Leases to which it is a party is, and at all times
has been, valid and in full force and effect and
constitutes the complete agreement between JDN and
Wal-Mart or Lowe's (as applicable) with respect to
the subject matter thereof.
(b) Notwithstanding the Discrepancies, JDN, Wal-Mart and
Lowe's individually affirm that the Purchases, Other
Transactions and Pending Transactions to which it is
a party are, and were at all times, valid and that
the documents evidencing such Purchases, Other
Transactions and Pending Transactions constitute the
complete agreement between JDN and Wal-Mart or Lowe's
(as applicable) with respect to the subject matter
thereof.
2. Releases; Indemnity.
(a) Wal-Mart and Lowe's, for themselves, their respective
legal representatives, successors, assigns and
Affiliates (as hereinafter defined), do hereby
release, remise and forever discharge JDN and its
predecessors, and all past and present officers,
directors, shareholders, partners, employees, agents,
representatives, attorneys, auditors and Affiliates
thereof (other than the Excluded
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Parties, as hereinafter defined) and, as applicable,
their respective executors, administrators, personal
representatives, legatees, heirs, successors and
assigns (collectively, the "JDN Parties") from any
and all actions, causes of action, claims, demands,
damages, liabilities and obligations to the Tenant
Parties (as hereinafter defined) of every kind and
nature, whether absolute or contingent, liquidated or
unliquidated, due or to become due, whether known or
unknown, or whether arising by contract, tort or
otherwise, arising out of the Discrepancies;
provided, however, notwithstanding anything in the
foregoing to the contrary, both Wal-Mart and Lowe's
hereby expressly reserve and retain the right to
assert as a defense or affirmative defense in any
action to which either is made a party the occurrence
of the Discrepancies in the event either Wal-Mart
and/or Lowe's, as the case may be, shall be made a
party to any litigation except that the Discrepancies
shall not be asserted as a defense or affirmative
defense to any claims by JDN, its successors and
assigns. For purposes of this Agreement, "Excluded
Parties" shall mean Xxx X. Xxxxxx, C. Xxxxxxx
Xxxxxxxxxx, XX, J. Xxxxxx Xxxxxxx, ALA Associates,
Inc., GeoSurvey, Ltd., the law firm of XxXxxxxxxx
Xxxxxxxx, L.L.P., and any current or former
associates or partners thereof (collectively,
"XxXxxxxxxx Xxxxxxxx"), and all Affiliates of any of
the foregoing individuals, entities and law firm;
provided, however, in no event shall JDN be included
within the definition of Excluded Parties. Provided
JDN is not in material default under this Agreement
(material defaults under this Agreement being limited
to defaults by JDN under the provisions of Sections
4(a), (b) and (d) below), Wal-Mart and Lowe's,
without waiving, discharging or releasing their
respective claims or causes of action, agree not to
independently institute and initiate legal
proceedings against the Excluded Parties with respect
to the Discrepancies. Nothing herein shall preclude
the filing of counterclaims by either Wal-Mart or
Lowe's against the Excluded Parties in any suits
brought by any of the Excluded Parties against either
Wal-Mart or Lowe's.
(b) JDN, for themselves, their respective legal
representatives, successors, assigns and Affiliates,
do hereby release, remise and forever discharge
Wal-Mart and Lowe's and their respective
predecessors, and all past and present officers,
directors, shareholders, partners, employees, agents,
representatives, attorneys, auditors and Affiliates
thereof and, as applicable, their respective
executors, administrators, personal representatives,
legatees, heirs, successors and assigns
(collectively, the "Tenant Parties") from any and all
actions, causes of action, claims, demands, damages,
liabilities and obligations to the JDN Parties of
every kind and nature, whether absolute or
contingent, liquidated or unliquidated, due or to
become due, whether known or
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unknown, or whether arising by contract, tort or
otherwise, arising out of the Discrepancies.
(c) JDN, for themselves, their respective legal
representatives, successors, assigns and affiliate do
hereby specifically release, remise and forever
discharge Lowe's and its predecessors, and all past
and present officers, directors, shareholders,
partners, employees, agents, representatives,
legatees, heirs, successors and assigns from any and
all rental adjustment obligations or reimbursement or
payment obligations to pay to JDN any further sums
which arise from, were incurred in connection with or
relate to on-site or off-site construction or
development costs as to the Lowe's Opelika, Alabama
project, which work was governed by that certain
Lease between Lowe's Home Centers and JDN Development
dated August 28, 1998.
(d) JDN hereby covenants and agrees to indemnify, defend
and hold harmless both Wal-Mart and Lowe's from and
against any and all damages, losses, liabilities,
penalties, fines, fees, costs or expenses (including
reasonable attorney's fees), suits, proceedings,
actions or claims arising from, in connection with or
resulting from this Agreement and/or the
Discrepancies, brought by or asserted by any third
party against Wal-Mart and/or Lowe's, including,
without limitation, any shareholders of JDN. In the
event any such suits, proceedings, actions or claims
are brought, Wal-Mart and/or Lowe's shall provide JDN
written notice of the same, and such reasonable
information then available concerning the same, in
order to provide JDN a reasonable opportunity to
resolve the matter prior to Wal-Mart and/or Lowe's
incurring substantial fees, costs, expenses or
liabilities in connection therewith. In connection
with the foregoing, each of Wal-Mart and Lowe's shall
have the right to approve any attorney representing
their respective interests, and in no event shall any
such attorney also represent the interests of JDN. In
order to be entitled to the indemnity provided for in
this paragraph, neither Wal-Mart nor Lowe's shall
settle or compromise any suits, proceedings, actions
or claims for which indemnification is being sought
without the prior written consent of either JDN
Development or JDN Realty, which shall not be
unreasonably withheld or delayed, which consent shall
be deemed granted in the event both of JDN
Development and JDN Realty fail to object by written
notice to Wal-Mart and/or Lowe's, as applicable,
within fifteen (15) days after written request for
such consent (any such written objection must set
forth in detail the reasonable grounds upon which
such objection is based). If either JDN Realty or JDN
Development does not grant its consent to any such
settlement (the Non-Consenting Party"), then the Non-
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Consenting Party shall be entitled to contest the
reasonableness of the settlement in connection with
any claim by Wal-Mart or Lowe's for indemnity from
the Non-Consenting Party; provided, however, in no
event shall failure to grant such consent relieve the
Non-Consenting Party of its indemnification
obligations under this Section 2(d)
3. Representations, Warranties, Acknowledgments and Covenants.
(a) JDN represents and warrants that it has attempted to
review expeditiously the Transactions for
Discrepancies and that it has generally described to
Wal-Mart and Lowe's the nature of the Discrepancies
ascertained by such review, but that the precise
nature and extent of the Discrepancies are currently
unknown, and may never be known, but are in excess of
Five Million Dollars ($5,000,000) as to each of
Lowe's and Wal-Mart.
(b) Wal-Mart and Lowe's acknowledge and agree that JDN
has generally described the nature of the
Discrepancies of which it is aware to the
representatives of each, but acknowledge that the
precise nature and extent of the Discrepancies are
currently unknown, and may never be known.
Notwithstanding the foregoing, the parties agree to
settle in full any and all disputes, whether now
existing or hereinafter arising from or related to
the Discrepancies solely on the terms set forth in
this Agreement.
(c) The parties acknowledge and agree that it would not
be beneficial or efficient to conduct a full scale,
comprehensive review in an attempt to identify with
particularity or quantify the Discrepancies, and
enter into this Agreement in settlement of a
potential dispute.
(d) Without limiting JDN's duties set forth in Section
4(e) hereof, the parties acknowledge and agree that
JDN is in no way obligated to further investigate or
report any further findings with respect to the
Discrepancies to Wal-Mart or Lowe's, or to at any
time or for any reason open or make available its
books and records to Wal-Mart or Lowe's for a further
investigation into the nature and extent of any
actual Discrepancies; provided, however, that from
and after the date of this Agreement, JDN shall
inform Wal-Mart and Lowe's, as applicable, of any
further material (either qualitative or quantitative)
information or evidence discovered by JDN with
respect to the Discrepancies. Nothing in this
paragraph shall be construed to affect or limit
Wal-Mart and Lowe's right to take actions necessary
to fulfill discovery requests that may be served on
Wal-Mart or Lowe's in connection with litigation with
third parties or conduct discovery in the context of
any litigation
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between any of the parties hereto brought as a result
of a breach or default under this Agreement.
(e) JDN hereby represents and warrants that both JDN
Development and JDN Realty have the authority and
power to enter into this Agreement and to consummate
the transactions contemplated herein; that specific
corporate resolutions of the Boards of Directors from
JDN Development and JDn Realty authorizing this
Agreement shall be submitted to Wal-Mart and Lowe's
upon the execution of this Agreement by all parties,
and that upon execution hereof both JDN Development
and JDN Realty will be legally obligated to Wal-Mart
and Lowe's in accordance with the terms and
provisions of this Agreement.
(f) Wal-Mart hereby represents and warrants that both
Wal-Mart Stores and Wal-Mart Trust have the authority
and power to enter into this Agreement and to
consummate the transactions contemplated herein; and
that upon execution hereof both Wal-Mart Stores and
Wal-Mart Trust will be legally obligated to JDN in
accordance with the terms and provisions of this
Agreement.
(g) Lowe's hereby represents and warrants that Lowe's has
the authority and power to enter into this Agreement
and to consummate the transactions contemplated
herein; and that upon execution hereof Lowe's will be
legally obligated to JDN in accordance with the terms
and provisions of this Agreement.
(h) Except as expressly set forth in this Agreement,
nothing contained herein shall be construed as
amending, modifying, supplementing or otherwise
altering in any manner the Existing Leases,
Purchases, Other Transactions or Pending
Transactions.
4. Covenants and Conditions.
(a) In consideration of Wal-Mart's agreements as set
forth herein, JDN shall pay Wal-Mart the sum of
$5,000,000,which payment shall be made (i) upon the
date the funding of the Approved Wal-Mart Sale shall
occur, or (ii) within ten (10) days of the date of
this Agreement, whichever occurs earlier. Failure to
make such payment as and when required under this
Section 4(a) shall constitute a material default by
JDN under this Agreement.
(b) In consideration of Lowe's agreements as set forth
herein, JDN shall pay Lowe's the sum of $5,000,000,
which payment shall be made (i) upon the date the
funding of the Approved Wal-Mart Sale shall occur, or
(ii) within ten (10) days of the date of this
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Agreement, whichever occurs earlier. Failure to make
such payment as and when required under this Section
4(b) shall constitute a material default by JDN under
this Agreement.
(c) Notwithstanding the Discrepancies, Wal-Mart and JDN
and Lowe's and JDN agree to continue the process of
negotiation and documentation with respect to the
Proposed Transactions; however, nothing herein shall
be construed as (i) creating any agreement or
contract between Wal-Mart and JDN or Lowe's and JDN
with respect to any of the Proposed Transactions;
(ii) imposing any obligation on the part of either
Wal-Mart or Lowe's to continue to discuss, enter into
agreements or consummate any transaction with JDN
with respect to any of the Proposed Transactions; or
(iii) creating by this Agreement any duty of good
faith, fair dealing or other duty with respect to
either Wal-Mart's or Lowe's dealings with JDN in
connection with any of the Proposed Transactions. The
parties hereto acknowledge and agree that no
agreement shall exist between Wal-Mart and JDN or
Lowe's and JDN with respect to any Proposed
Transaction unless Wal-Mart and JDN or Lowe's and
JDN, as the case may be, shall successfully
negotiate, reach agreement and execute a definitive
written agreement concerning the same.
(d) In the event that JDN (whether prior to, concurrent
with or subsequent to the date of this Agreement)
recovers any sums or other property from one or more
of the Excluded Parties or former attorneys related
to or based on allegations of wrongdoing by the
Excluded Parties involving acts or omissions prior to
the date of this Agreement, including but not limited
to the Discrepancies ("Wrongful Acts") or who remit
funds or other property to either JDN Realty or JDN
Development related to the Wrongful Acts, or if
either JDN Realty or JDN Development otherwise
recovers sums or other property relating to the
Wrongful Acts from bonds, insurance or other sources,
JDN shall pay each Wal-Mart and Lowe's one-quarter of
the amount of any such recovery promptly upon JDN's
receipt thereof, net of one-quarter of all actual
attorneys' fees, costs and disbursements directly
related to such recovery and one-quarter of other
expenses actually incurred and directly related to
obtaining and collecting such recovery; provided,
however, in no event shall any fees, costs,
disbursements and other expenses expended, accrued or
otherwise relating to services performed prior to the
date hereof, or any fees, costs, disbursements and
other expenses related to the settlement agreements
referred to in the next to last sentence of this
Section 4(d), be included for the purpose of
determining the amounts payable to Wal-Mart and
Lowe's pursuant to this Section 4(d).
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The parties hereto acknowledge and agree that neither
Wal-Mart nor Lowe's shall be entitled to recover any
portion of the proceeds received by JDN (i) from its
D&O insurance carrier or any other party or entity
for purposes of JDN making any payment over to or
held for the benefit of any third parties (including
shareholders) in full or partial settlement or
satisfaction of any securities claims against JDN or
its existing officers and directors (including any
legal fees and expenses reimbursed to JDN by its D&O
carrier) and which are in fact paid over to third
parties, and (ii) in connection with the proposed
settlement agreements on the compensation-related
claims with J. Xxxxxx Xxxxxxx, Xxx X. Xxxxxx, C.
Xxxxxxx Xxxxxxxxxx, XX and ALA Associates, Inc.,
provided such settlements are substantially in the
form and amounts provided to Wal-Mart and Lowe's
prior to the execution of this Agreement, and
provided such agreements shall not relieve said
parties from any liability with respect to the
Discrepancies. Any default by JDN under the
provisions of this Section 4(d) shall constitute a
material default by JDN under this Agreement.
(e) JDN shall provide reasonable cooperation with all
governmental agencies, including the Securities and
Exchange Commission, Internal Revenue Service and the
Justice Department in connection with participation
by former officers or directors of JDN Realty or JDN
Development in the Discrepancies; provided that
nothing contained herein shall require JDN to waive
any applicable privileges.
(f) This Agreement is contingent upon JDN receiving an
extension of its current credit facility or otherwise
obtaining a credit facility ("Credit Facility") on
terms acceptable to JDN and sufficient, in the
reasonable opinion of Wal-Mart and Lowe's, to allow
JDN to undertake the Pending Transactions and the
Proposed Transactions in accordance with this
Agreement. In the event that such a Credit Facility
is not obtained on or prior to May 26, 2000, this
Agreement shall be null and void and the parties
shall be released from any and all liabilities,
duties and obligations hereunder.
5. Definitions.
(a) The term "Affiliate" as used herein shall mean (i)
any person or entity of which the subject party owns,
directly or indirectly, more than ten percent (10%)
of the issued and outstanding voting stock or in
which the subject party owns, directly or indirectly,
more than a ten percent (10%) interest, (ii) any
person or entity Controlled, directly or indirectly,
through one or more intermediaries, by the subject
party, (iii) any person or entity Controlling the
subject party, directly or indirectly, through one or
more intermediaries, and (iv) any person or entity
Controlled by a person or entity Controlling the
subject party, directly or indirectly, through one or
more intermediaries.
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(b) "Control shall mean the direct or indirect possession
of the power to direct or cause the direction of the
management or policies of an entity, whether through
the ownership of voting securities, by contract or
otherwise.
6. Miscellaneous.
(a) Each party hereto has reviewed and had the
opportunity to revise this Agreement and each party
has had the opportunity, whether exercised or not, to
have its attorneys review this Agreement.
(b) This Agreement shall be governed by and construed in
accordance with the internal laws of the state of
Georgia, without regard to principals of conflicts of
law, and any dispute between the parties arising
under this Agreement shall be litigated solely in the
state or federal courts in Georgia.
(c) This Agreement may be executed in one or more
counterparts, by facsimile or otherwise, each of
which shall be deemed an original and all of which
together shall constitute one and the same
instrument.
(d) If any one or more of the provisions contained in
this Agreement shall for any reason be held invalid,
illegal or unenforceable for any reason, such
invalidity, illegality or unenforceability shall not
affect any other provisions of this Agreement but
shall be construed as if such invalid, illegal or
unenforceable provision had never been contained
herein. If any provision of this Agreement were
capable of two constructions, one of which would
render the provision void, voidable or unenforceable
and the other of, which would render the provision
valid, then the provision shall have the meaning that
renders it valid.
(e) This Agreement sets forth the final and entire
agreement between the parties hereto, and fully
supersedes any and all prior agreements or
understandings between the parties pertaining to this
subject matter.
(f) The obligations of JDN Development and JDN Realty
hereunder shall be joint and several.
(g) Any notices, demands, requests or other
communications required or permitted to be given
hereunder shall be in writing and shall be delivered
by hand or a widely recognized national overnight
courier service or mailed by United States registered
or certified
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mail, return receipt requested, postage prepaid and
addressed to each party at its address as set forth
below:
To JDN: JDN Development Company, Inc.
000 Xxxx Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
To Wal-Mart: Wal-Mart Stores, Inc.
0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
To Lowe's: Xxxx'x Home Centers, Inc.
X.X. Xxx 0000
(Xxxxxxx 000 Xxxx, Xxxxx Xxxxxxxxxx,
Xxxxx Xxxxxxxx 28659)
N. Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Law Dept. (REO)
Any such notice, request or other communication shall
be considered given or delivered, as the case may be,
on the date of hand or overnight courier delivery or
upon deposit in the United States mail as provided
above. Rejection or other refusal to accept or
inability to deliver because of changed address of
which no notice was given shall be deemed to be
receipt of the notice, request or other
communication. By giving at least five (5) days prior
written notice thereof, any party may from time to
time at any time change its mailing address
hereunder.
(f) This Agreement shall be binding upon, and shall inure
to the benefit of, the parties hereto and their
respective successors and assigns.
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IN WITNESS WHEREOF, the parties have executed this Agreement under seal
by their duly authorized officers as of the date first above written.
JDN REALTY CORPORATION
ATTEST:
By:
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Name:
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Title:
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JDN DEVELOPMENT COMPANY, INC.
ATTEST:
By:
----------------------------------------
Name:
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Title:
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WAL-MART STORES, INC.
ATTEST:
By:
----------------------------------------
Name:
--------------------------------------
Title:
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WAL-MART REAL ESTATE BUSINESS TRUST
ATTEST:
By:
----------------------------------------
Name:
--------------------------------------
Title:
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XXXX'X COMPANIES, INC.
ATTEST:
By:
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Name:
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Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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XXXX'X HOME STORES, INC.
ATTEST:
By:
----------------------------------------
Name:
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Title:
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EXHIBIT A-1
EXISTING WAL-MART LEASES(1)
YEAR
COMPLETED
---------
1 BUFORD, GA XXXX XXXXX XXXXXXXX XXX-XXXX 0000
0 XXXXXX, XX XXXXX XXXXXX XXX-XXXX 0000
0 XXXXXXXXXX, XX ASHLEY CROSSING WAL-MART 1991
4 CUMMING, GA CUMMING MARKETPLACE WAL-MART 1997
5 DECATUR, AL XXXX XXXX XXXXX XXX-XXXX 0000
0 XXXXXXXXXXXXXX, XX XXXXXXXXX XXXXXXXX XXX-XXXX 0000
0 XXXXXXXX, XX (WAL-MART ONLY) WAL-MART 0000
0 XXXX XXXX, XX XXXXXX CORNERS WAL-MART 1991
9 LAWRENCEVILLE, GA TOWN CENTER WAL-MART 1989
10 LEXINGTON, VA LEXINGTON COMMONS WAL-MART 0000
00 XXXXXXX, XX BEACON HEIGHTS WAL-MART 1989
12 NASHVILLE, TN XXXXXXXXX XXXX WAL-MART 1998
13 NEWNAN, GA NEWNAN CROSSING WAL-MART 1995
14 OCALA, FL OCALA WEST SHOPPING CENTER WAL-MART 1989
15 OPELIKA, AL PEPPERELL CORNERS WAL-MART 1993
16 ROCKINGHAM, NC PINERIDGE CROSSING WAL-MART 1986
00 XXXXX XXXXXX, XX TRI-RIVERS PLAZA WAL-MART 1989
18 WILMINGTON, NC MYRTLE GROVE WAL-MART 1990
19 WOODSTOCK, GA XXXXXXXXX XXXXX XXX-XXXX 0000
* Include all existing Wal-Mart leases, including executed leases for projects
under development.
A-1
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EXHIBIT A-2
EXISTING LOWE'S LEASES(2)
YEAR
COMPLETED
---------
1 ALPHARETTA, GA LOWE'S 1998
2 BUFORD, GA XXXX XXXXX XXXXXXXX XXXX'X 0000
0 XXXXXXXXXX, XX XXX-XXXXX XXXXX XXXX'X 0000
0 XXXXXXX, XX CUMMING MARKETPLACE LOWE'S 1999
5 HAMPTON, VA LOWE'S
6 HENDERSONVILLE, TN LOWE'S 1999
7 LILBURN, GA PLEASANT HILL LOWE'S 1997
8 MARIETTA, GA XXXXXXXX XXXXX XXXX'X 0000
0 XXXXXX, XX TOWNSHIP MARKETPLACE LOWE'S 1997
10 NASHVILLE, TN - CH. PK XXXXXXXXX XXXX XXXX'X 1998
11 NEWNAN, GA NEWNAN CROSSING LOWE'S 1995
12 OPELIKA, AL LOWE'S 1999
13 ROCKINGHAM, NC PINERIDGE CROSSING LOWE'S 0000
00 XXXXX XXXXXXXX, XX LOWE'S 1998
15 TALLAHASSEE, FL CAPITAL WEST LOWE'S 1990
16 WARNER ROBINS, GA WARNER ROBINS PLACE LOWE'S 1997
17 WOODSTOCK, GA LOWE'S 1997
A-2
16
EXHIBIT B-1
WAL-MART PURCHASES
YEAR
COMPLETED
---------
1 ALBANY, GA SAM'S 1993
2 AMERICUS, GA WAL-MART 1983
3 ATHENS, GA WAL-MART 1980
4 ATHENS, GA ATHENS EAST WAL-MART 2000
5 ATLANTA, GA WAL-MART (XXXXXXX XXXXX XX) 0000
0 XXXXXXX, XX SAM'S 1992
7 AUSTELL, GA XXXXXXXX XXXXX XXX-XXXX
0 XXXXXXXXXX, XX WAL-MART
9 BREMEN, GA WAL-MART
10 BROWNSVILLE, TX STRAWBERRY SQUARE WAL-MART 1986
11 BRUNSWICK, GA WAL-MART 1985
12 BURLINGTON, OH XXX-XXXXX XXXXX XXX-XXXX/XXX'X 0000
00 XXXXXXXXXX, XX WAL-MART 1995
14 CAIRO, GA CAIRO CROSSING WAL-MART
15 CALHOUN, GA XXXXXX XXXXX XXX-XXXX
00 XXXXXX, XX RIVERPLACE WAL-MART 0000
00 XXXXXXXXXXXX, XX FELTON'S CROSSING WAL-MART 0000
00 XXXXXXXXXXXX, XX BARTOW MARKETPLACE WAL-MART 1995
19 CHARLESTON, SC ASHLEY CROSSING WAL-MART 1991
20 CHERAW, SC CHESTERFIELD COMMONS WAL-MART 0000
00 XXXXXXXXXXX, XX PICKAWAY CROSSING WAL-MART
22 CONYERS, GA CONYERS PLAZA WAL-MART 1996
23 CORDELE, GA WAL-MART 1986
24 CORDELE, GA CORDELE MARKETPLACE WAL-MART 1997
25 COVINGTON, GA XXXXXX'X CROSSING WAL-MART 1990
26 CUMMING, GA WAL-MART 1983
27 CUMMING, GA CUMMING MARKETPLACE WAL-MART 1997
28 DECATUR, GA XXXXXX CHAPEL CROSSING WAL-MART
29 DECATUR, IL DECATUR MARKETPLACE WAL-MART 1999
30 XXXXXX, SC WAL-MART 0000
00 XXXXXXXXXXXX, XX WAL-MART 1982
32 DOUGLASVILLE, GA XXXXXXX CROSSING WAL-MART 1990
33 DUBLIN, GA WAL-MART
34 EASTMAN, GA DODGE COUNTY MARKETPLACE WAL-MART 1986
35 EDINBURG, TX WAL-MART 1981
36 FAYETTEVILLE, GA WAL-MART 1982
37 XXXXXXXXXX, GA WAL-MART 1983
38 FLORENCE, SC WAL-MART 0000
00 XXXX XXXXXX, XX WHITE SANDS WAL-MART 1985
40 FRANKLIN, TN XXXXXXXXX XXXXX XXXXXXX 0000
00 XXXXXXXX, XX SAM'S 1999
42 GADSDEN, AL EASTSIDE PLAZA WAL-MART 1980
43 GAINESVILLE, GA WAL-MART 1984
44 GALLIPOLIS, OH GALLIPOLIS MARKETPLACE WAL-MART 1997
45 GRIFFIN, GA XXXXX CROSSING WAL-MART 1985
46 GULF BREEZE, FL GULF BREEZE MARKETPLACE WAL-MART 1998
00 XXXXXXXXX, XX XXX-XXXX
00 XXXXXXXXXX, XX WAL-MART 1987
49 HARTWELL, GA WAL-MART 1987
50 HAZELHURST, GA WAL-MART 1986
51 HICKORY, NC HICKORY CORNERS WAL-MART
52 IRVING, TX MACARTHUR MARKETPLACE WAL-MART 1999
53 IRVING, TX MACARTHUR MARKETPLACE SAM'S 1999
54 KENNESAW, GA XXXX XXXXX CROSSING WAL-MART
55 LAFAYETTE, IN WAL-MART 1999
56 LANSING, MI WAL-MART 1999
00 XXXXX, XX XXX-XXXX
00 XXXXXX XXXX, XX TELLICO PLAZA WAL-MART
59 LEXINGTON, KY XXXXX XXXX XXX-XXXX 0000
00 XXXXXXXXX, XX XXXXX XXXX XXX-XXXX 0000
00 XXXXXXXXX, XX WAL-MART
62 XXXXXX, VA XXXXX VALLEY CROSSING WAL-MART 1989
63 MCALLEN, TX WAL-MART 1981
64 MELBOURNE, FL WAL-MART 1990
65 MILWAUKEE, WI SOUTHGATE WAL-MART
66 MISSION TX WAL-MART 1981
67 XXXXX, SC XXXXX'X XXXXXX XXX-XXXX 0000
00 XXXXXX, XX WAL-MART 1983
69 MORROW, GA WAL-MART 1986
70 MOULTRIE, GA WAL-MART 1986
71 OPELIKA, AL PEPPERELL CORNERS WAL-MART 0000
00 XXXXXXXX XXXX, XX SAM'S 2000
73 PARKER, CO WAL-MART
74 PHARR, TX WAL-MART 1982
75 POOLER, GA WAL-MART 0000
00 XXXXXXXXX, XX MERCHANT'S SQUARE WAL-MART 1986
00 XXXXXXXXX, XX XXX-XXXX
00 XXXX, XX WAL-MART/SAM'S 1993
79 SCOTTSBORO, AL SCOTTSBORO MARKETPLACE WAL-MART 1999
80 SNELLVILLE, GA XXXXXXXXXX XXXX XXX-XXXX
00 XXXXXXXX, XX XXXXXXX XXXXXXXX XXX-XXXX
00 XXXXXXXXXXX, XX XXXX XXXXXXXX XXX-XXXX
00 XXXXXX, XX MERCHANT'S WALK WAL-MART 1985
84 SWAINSBORO, GA WAL-MART 1986
85 TALLAHASSEE, FL CAPITAL WEST WAL-MART 1989
86 THOMASVILLE, GA WAL-MART
87 TIFTON, GA TIFTON CORNERS WAL-MART 1986
88 TUCKER, GA XXXXX CROSSING WAL-MART 0000
00 XXXXX XXXX, XX XXXXXXX SQUARE WAL-MART 1986
90 VALDOSTA, GA WAL-MART 1981
00 XXX XXXX, XX XXX-XXXX
00 XXXXXXX, XX WAL-MART 1985
93 XXXXXXX, NC XXXXXXX CROSSING WAL-MART
94 XXXXXX XXXXXX XXXXXX XXXXXX PLACE WAL-MART
95 WAVELAND, MS WAL-MART 0000
00 XXXXXXXXXX, XX WAL-MART
97 WINSTON-SALEM XXXXXX MILL VILLAGE WAL-MART 1997
98 WOODSTOCK, GA WOODSTOCK PLACE WAL-MART 1984
17
EXHIBIT B-2
LOWE'S PURCHASES
YEAR
COMPLETED
---------
1 ASHEVILLE, NC XXXXXX XXXXXX XXXX'X 0000
0 XXXXXXX, XX XXXXXXX XXXX XXXXXXX XXXX'X 0000
0 XXXXXXXXXXXX, XX BARTOW MARKETPLACE LOWE'S 1995
5 CONYERS, GA LOWE'S
6 DOUGLASVILLE, GA DOUGLASVILLE MARKETPLACE LOWE'S 1999
7 FAYETTEVILLE, GA LOWE'S 2000
8 FRANKLIN, TN LOWE'S 1998
9 GULF BREEZE, FL GULF BREEZE MARKETPLACCE LOWE'S
10 JOHNSON CITY, TN LOWE'S 0000
00 XXXXXXXX, XX LOWE'S 0000
00 XXXXXXX, XX LOWE'S
13 LEXINGTON, KY XXXXX XXXX XXXX'X 0000
00 XXXXXXXXX, XX LOWE'S 1999
15 MURFREESBORO, TN TOWN CENTRE LOWE'S 1998
16 OPELIKA, AL PEPPERELL CORNERS LOWE'S 0000
00 XXXXXXXX, XX LOWE'S 1992
00 XXXXX XXXXXXXX, XX LOWE'S 0000
00 XXXXXXXXXXXX, XX LOWE'S 1996
B-2
18
EXHIBIT C-1
PENDING WAL-MART TRANSACTIONS(3)
1 LEXINGTON, KY (SOUTHFARM)
2 LEXINGTON, KY (NORTHPARK)
3 SCOTTSBORO, AL
4 POOLER, GA
5 ATHENS, GA
6 XXXXXX XXXXXX, XX
0 XXXXXX, XX - XXX-XXXX
0 XXXXXX, XX - SAM'S
9 LANSING, MI
10 OVERLAND PARK, KS
11 XXXXXXXXX, XX
00 XXXXXXXXX, XX
* Include all signed Wal-Mart agreements other than leases, including agreements
for projects under development.
C-1
19
EXHIBIT C-2
PENDING LOWE'S TRANSACTIONS(4)
0 XXXX XXXXXX, XX
0 XXXXXXX, XX
3 XXXXXXXX, XX
0 XXXXXXX, XX
0 X. XXXXXXX, XX
0 XXXXXXXX, XX
C-2
