EXHIBIT 10.6
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ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTERESTS
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THIS ASSIGNMENT (this "Assignment") is made and entered into as of
the 31st day of October, 2003, by and between OTR, an Ohio general
partnership acting as duly authorized nominee on behalf of the State
Teachers Retirement Board of Ohio ("Assignor"), and AMLI RESIDENTIAL
PROPERTIES, L.P., a Delaware limited partnership ("Assignee").
RECITALS
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A. Assignor owns 90% of the membership interests, and Assignee
owns 10% of the membership interests, in Amli at Danada L.L.C, an Illinois
limited liability company (the "Company"), pursuant to that certain
Operating Agreement of Amli at Danada L.L.C. dated as of February 28, 1997
(the "Operating Agreement"); capitalized terms used herein and not defined
herein shall have the meanings given them in the Operating Agreement).
B. The Company owns real property located in Wheaton, Illinois,
upon which the Company owns, operates and manages an apartment community
known as Amli at Danada Farms (the "Community").
C. Assignor desires to assign and Assignee desires to acquire all
of Assignor's right, title and interest in Assignor's membership interests
in the Company (the "Assigned Interests") and all interests, rights and
obligations under the Operating Agreement with respect to the Assigned
Interests only, as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing Recitals, and
the warranties and mutual covenants set forth herein, Assignor and Assignee
hereby agree as follows:
1. ASSIGNMENT OF ASSIGNED INTERESTS. Assignor hereby sells,
assigns, transfers, conveys and delivers to Assignee, free and clear from
any liens, encumbrances or defects of title, and Assignee hereby accepts,
acquires and takes assignment and delivery of the Assigned Interests,
including, but not limited to, all right, title and interest in and to the
properties (real and personal), capital, cash flow distributions, profits
and losses of the Company relating or allocable to the Assigned Interests.
2. PURCHASE PRICE. In consideration of the sale,
assignment, transfer, conveyance and delivery of the Assigned Interests,
upon the execution hereof Assignee shall pay to Assignor cash in the amount
of $41,890,453.10, determined in accordance with SCHEDULE A hereto (the
"Purchase Price"). The Purchase Price is based upon a total Company value
of $71,000,000, less outstanding debt as of the Effective Date and
Assignor's pro rata portion of real estate taxes and certain other costs
that relate to periods prior to the Effective Date that have been incurred
but not yet paid by the Company. The Purchase Price shall be paid by wire
transfer to such account as shall be provided in writing by Assignor.
3. EFFECTIVE DATE. The assignment herein made is effective
as of the date of this Assignment (the "Effective Date"), For all periods
up to, but not including, the Effective Date, that portion of the net
profits or net losses of the Company that are allocable to the Assigned
Interests in accordance with the Operating Agreement shall be credited,
charged or distributed, as the case may be, to Assignor and not to Assignee
and, for all periods from and after the Effective Date, that portion of the
net profits or net losses of the Company allocable to the Assigned
Interests shall be credited, charged or distributed, as the case may be, to
Assignee and not to Assignor.
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4. PRORATIONS.
(a) On or prior to February 26, 2004, Assignor and Assignee
shall agree upon the prorations set forth in this Section 4. Any
payments owing as a result of such prorations shall be made as soon
as reasonably practicable after such agreement is reached. For
purposes of making the prorations, the Effective Date shall belong to
Assignee and all prorations hereinafter provided to be made as of the
Effective Date shall each be made as of the end of the day before the
Effective Date. In each such proration set forth below, the portion
thereof applicable to periods beginning as of the Effective Date
shall be credited or charged to Assignee and the portion thereof
applicable to periods ending immediately prior to the Effective Date
shall be credited or charged to Assignor.
1. TAXES AND ASSESSMENTS. General real estate taxes
and assessments imposed by governmental authority and any
assessments imposed by private covenant constituting a lien or
charge on the Community for all tax periods through and
including the then current calendar year or other current tax
period (collectively, "Taxes") not yet due and payable shall
be prorated; provided, however, that an initial estimated
proration of Taxes for all periods prior to the Effective Date
has been reflected in the Purchase Price as set forth on
Schedule A hereto. If a final tax xxxx for any period is
available prior to the proration under this Section 4(a), the
Taxes for such period shall be allocated on a fair and
equitable basis according to this Section 4(a) as a final
proration, with a final and complete proration of Taxes for all
other tax periods, for which final tax bills are not available
prior to the proration under this Section 4(a), to be made
pursuant to Section 4(b); provided, that, if the final tax
bills for all periods are available prior to the proration
under this Section 4(a), the Taxes and all other items to be
prorated shall be allocated on a fair and equitable basis
according to this Section 4(a) as a final proration.
2. COLLECTED RENT. All collected rent and other
collected income (and any applicable state or local tax on
rent) under apartment leases in effect on the Effective Date
shall be prorated. Uncollected rent and other income shall not
be prorated. Assignee agrees to make all reasonable efforts to
collect, and to cause the Company to collect, any rents
applicable to the period prior to the Effective Date. Such
rents paid by tenants on or after the Effective Date relating
to their occupancy of the Community prior to the Effective Date
shall be prorated on an if, as and when collected basis. Any
amount collected by Assignee on or after the Effective Date
from tenants who owe rent for periods prior to the Effective
Date shall be applied (i) first, in payment of rent for the
period (if any) after the month in which the Effective Date
occurs through the end of the month in which such amount is
collected if the rent for such month is then due and payable
(ii) second, in payment of rent for the month in which the
Effective Date occurs, and (iii) third, in payment of rent for
the months preceding the month in which the Effective Date
occurs to the extent rent for such months preceding the
Effective Date remains unpaid. Any prepaid rents for the period
on or after the Effective Date shall be credited to Assignee.
3. UTILITIES. Utilities, including water, sewer,
electric, and gas based upon the last reading of meters prior
to the Effective Date shall be prorated. The Company shall
endeavor to obtain meter readings on the day before the
Effective Date, and if such readings are obtained, the
proration of such items shall be based upon such readings.
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4. FEES AND CHARGES UNDER SERVICE CONTRACTS. Fees
and charges under contracts for the provision of services to
the Company based upon the periods to which such service
contracts relate shall be prorated.
5. DEPOSITS. Nonrefundable deposits or other cash
held by the Company which would be available for distribution
to the Members if the Company were to be liquidated shall be
prorated.
(b) If a final proration with respect to any Taxes cannot be
made under this Section 4 on or before February 26, 2004, then
Assignee and Assignor agree to perform a final proration of such
Taxes and any other remaining undetermined items on a fair and
equitable basis as soon as the applicable tax bills for such tax
periods are available, with final adjustment to be made as soon as
reasonably possible thereafter. Payments in connection with the final
adjustment shall be made as soon as reasonably practicable after such
final adjustment is agreed upon.
(c) Assignor shall have reasonable access to, and the right
to inspect and audit, the Company's books to confirm the prorations.
Any such audit shall be at Assignor's sole cost and expense.
5. REPRESENTATIONS OF ASSIGNOR. Assignor hereby represents and
warrants to Assignee that:
(a) Assignor is duly organized and validly existing under the
laws of the state of its organization and has been duly authorized by
all necessary and appropriate action to enter into this Assignment
and to consummate the transactions contemplated hereby. This
Assignment is a valid and binding obligation of Assignor, enforceable
against Assignor in accordance with its terms, except insofar as
enforceability may be affected by bankruptcy, insolvency or similar
laws affecting creditor's rights generally and the availability of
any particular equitable remedy.
(b) Assignor is the record and beneficial owner of all of the
Assigned Interests, free and clear of any lien, claim, option, call,
right of first refusal, charge, encumbrance, restriction on transfer
(other than any restriction under the Securities Act of 1933, as
amended, or state securities or "blue sky" laws) or other right of
any other party. The Assigned Interests represent all of Assignor's
ownership interest in the Company,
(c) Assignor's execution and delivery of this Assignment,
its performance of its obligations hereunder and its consummation
and the validity of the transactions contemplated hereby do not
require it to obtain any consent, approval or action of, or make any
filing with or give any notice to, any corporation, person or firm,
or any public, governmental or regulatory body or judicial authority,
which has not previously been obtained, provided that Assignor makes
no representation or warranty regarding any consent required to be
obtained from the Prudential Insurance Company of America with
respect to this Agreement.
6. REPRESENTATIONS OF ASSIGNEE. Assignee hereby represents and
warrants to Assignor that:
(a) Assignee is duly organized and validly existing under the
laws of the state of its organization and has been duly authorized by
all necessary and appropriate action to enter into this Assignment
and to consummate the transactions contemplated hereby. This
Assignment is a valid and binding obligation of Assignee, enforceable
against Assignee in accordance with its terms, except insofar as
enforceability may be affected by bankruptcy, insolvency or similar
laws affecting creditor's rights generally and the availability of
any particular equitable remedy.
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(b) Assignee's execution and delivery of this Assignment,
its performance of its obligations hereunder and its consummation and
the validity of the transactions contemplated hereby do not require
it to obtain any consent, approval or action of, or make any filing
with or give any notice to, any corporation, person or firm,
including without limitation, The Prudential Insurance Company of
America, the holder of a mortgage encumbering title to the Community,
or any public, governmental or regulatory body or judicial authority,
which has not previously been obtained.
(c) Assignee has obtained all consents required to be
obtained from The Prudential Insurance Company of America with
respect to this Agreement.
7. ASSUMPTION BY ASSIGNEE; INDEMNITY. Assignee hereby: (i)
accepts the Assigned Interests and all rights of Assignor under the
Operating Agreement in respect thereof; and (ii) assumes (A) all of the
liabilities of the Company as they relate to the Assigned Interests
accruing on or after the Effective Date and (B) all obligations of Assignor
under the Operating Agreement in respect of the Assigned Interests,
accruing on or after the Effective Date, and agrees to be bound by the
provisions thereof with respect thereto. In no event shall the liabilities
or obligations assumed by Assignee include any federal or state income tax
liabilities of Assignor relating to the Company or the Assigned Interests
incurred or accrued, whether known or unknown, as of the Effective Date.
Assignee does hereby indemnify, defend, protect, save, and hold forever
harmless Assignor, its partners, affiliates, employees, and agents from and
against, any and all claims, demands, suits, causes of action,
controversies, liabilities, costs, expenses, and losses, including, without
limitation, reasonable attorneys' fees and expenses, arising from or
relating to any obligation whatsoever under the Operating Agreement due and
payable, or arising or accruing from events occurring, on the Effective
Date or at any time thereafter.
8. NO BROKERS. No broker, finder or similar intermediary has
acted for or on behalf of, or is entitled to any broker's, finder's or
similar fee or other commission from Assignor or Assignee or any of their
respective Affiliates in connection with this Assignment or the
transactions contemplated hereby. Assignor agrees to indemnify and hold
Assignee free and harmless, and Assignee agrees to indemnify and hold
Assignor free and harmless, from and against any and all claims, demands,
suits, causes of action, controversies, liabilities, costs expenses, and
losses, including, without limitation, reasonable attorneys' fees and
expenses that the indemnified party may suffer as a result of any claims
made or suits brought by any broker, salesperson, agent or finder who
claims to have introduced or to have been retained by the indemnifying
party in connection with this transaction.
9. FURTHER ASSURANCES. Each party, at its sole cost and expense,
upon request of the other party, shall execute and deliver such further
instruments and do or cause to be done such further acts as may be
reasonably necessary to be done by such party to effectuate and confirm the
assignment of the Assigned Interests.
10. MUTUAL RELEASE.
(a) As of the Effective Date, except as explicitly provided
in this Assignment Assignor, on its behalf and on behalf of each of
its Affiliates and each of their respective representatives, agents,
successors, assigns, officers, directors, members, managers,
employees and each of them (collectively, the "Assignor Parties")
hereby irrevocably waives, releases and discharges, absolutely and
forever, Assignee, the Company and each of their Affiliates from any
and all liabilities to Assignor or the other Assignor Parties of any
kind and nature whatsoever (including in respect of any rights of
contribution or indemnification), in respect of facts, events,
circumstances or conditions occurring or arising prior to the
Effective Date.
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(b) As of the Effective Date, except as explicitly provided
in this Assignment, each of Assignee and the Company, on its behalf
and on behalf of each of their respective Affiliates and each of
their respective representatives, agents, successors, assigns,
officers, directors, members, managers, employees and each of them
(collectively, the "Assignee Parties") hereby irrevocably waives,
releases and discharges, absolutely and forever, Assignor and each
of its Affiliates, from any and all liabilities to Assignee, the
Company or the other Assignee Parties of any kind and nature
whatsoever (including in respect of any rights of contribution or
indemnification), in respect of facts, events, circumstances or
conditions occurring or arising prior to the Effective Date.
(c) Notwithstanding anything to the contrary in paragraphs
(a) and (b) above, nothing in this Section 10 shall be construed as a
waiver or release by or in favor of either party with respect to any
rights either of them may have pursuant to this Assignment.
11. SUCCESSORS AND ASSIGNS. This Assignment shall be binding upon
and inure to the benefit of Assignor and Assignee and the respective heirs,
legal representatives, successors and assigns of each.
12. SURVIVAL OF REPRESENTATIONS. The representations, warranties,
covenants indemnities and agreements of the parties contained in this
Assignment are the only such terms made or relied upon by the parties and
shall survive the consummation of the transactions contemplated hereby.
13. MODIFICATION AND WAIVER. No supplement, modification, waiver
or termination of this Assignment or any provision hereof shall be binding
unless executed in writing by the parties to be bound thereby. No waiver of
any of the provisions of this Assignment shall constitute a waiver of any
other provision (whether or not similar), nor shall such waiver constitute
a continuing waiver unless otherwise expressly provided.
14. GOVERNING LAW. This Assignment shall be construed and enforced
in accordance with the laws of the State of Delaware applicable to
agreements made and to be performed entirely within said state.
15. RECOURSE TO AMLI. ANYTHING CONTAINED HEREIN TO THE CONTRARY
NOTWITHSTANDING, NO PERSONAL LIABILITY OR PERSONAL DEFICIENCY JUDGMENT
SHALL BE ASSERTED OR ENFORCED AGAINST ANY PARTNERS OF ASSIGNEE, AGAINST THE
TRUSTEES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, SHAREHOLDERS OR PRINCIPALS
OF SUCH PARTNERS, OR AGAINST THE ASSETS OF ANY SUCH PARTIES, FOR PAYMENT OF
ANY AMOUNT HEREUNDER OR FOR OBSERVANCE OR PERFORMANCE OF ANY OF THE
OBLIGATIONS OF ASSIGNEE OR THE COMPANY. NOTHING CONTAINED ABOVE SHALL LIMIT
THE REMEDIES AGAINST ANY PERSON FOR SUCH PERSON'S FRAUD OR INTENTIONAL
MISCONDUCT, IN WHICH EVENT SUCH REMEDIES SHALL BE DETERMINED BY APPLICABLE
LAW.
16. RECOURSE TO OTR. ANYTHING CONTAINED HEREIN TO THE CONTRARY
NOTWITHSTANDING, NO PERSONAL LIABILITY OR PERSONAL DEFICIENCY JUDGMENT
SHALL BE ASSERTED OR ENFORCED AGAINST ANY PRESENT OR FUTURE (A) PARTNERS OF
ASSIGNOR, (B) BOARD MEMBERS OR OFFICERS OF THE STATE TEACHERS RETIREMENT
SYSTEM OF OHIO, (C) RETIRANT, BENEFICIARY, INTERNAL INVESTMENT CONTRACTOR,
ATTORNEY OR AGENT THEREOF, (D) TRUSTEES, OFFICERS, EMPLOYEES, AGENTS,
PARTNERS, SHAREHOLDERS OR PRINCIPALS OF SUCH PARTNERS, OR (E) ASSETS OF ANY
SUCH PARTIES, FOR PAYMENT OF ANY AMOUNT HEREUNDER OR FOR OBSERVANCE OR
PERFORMANCE OF ANY OF THE OBLIGATIONS OF ASSIGNOR. NOTHING CONTAINED ABOVE
SHALL LIMIT THE REMEDIES AGAINST ANY PERSON FOR SUCH PERSON'S FRAUD OR
INTENTIONAL MISCONDUCT, IN WHICH EVENT SUCH REMEDIES SHALL BE DETERMINED BY
APPLICABLE LAW, AND THE FOREGOING SHALL NOT RELEASE THE BOARD OF THE STATE
TEACHERS RETIREMENT SYSTEM OF OHIO FROM LIABILITY FOR THE OBLIGATIONS OF
OTR HEREUNDER.
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17. TAX MATTERS. On the Effective Date, there shall be an interim
closing of the Company's books and all items of the Company's Profits and
Losses for the current fiscal year up to (but not including) the Effective
Date shall be allocated to Assignor and Assignee in accordance with the
Operating Agreement. Assignee shall cause the Company to prepare the tax
return of the Company for the portion of the current fiscal year up to (but
not including) the Effective Date (the "Termination Tax Return") as a
result of the termination of the Company for tax purposes under Section
708(b)(1)(B) of the Internal Revenue Code of 1986, as amended. Assignee
shall provide Assignor with a copy of the Termination Tax Return for
Assignee's review and approval (which shall not be unreasonably withheld or
delayed) prior to filing such return with the Internal Revenue Service.
Assignor and Assignee shall each file all required federal, state and local
income tax returns and related returns and reports in a timely manner
consistent with the foregoing and as required by law.
18. ENTIRE AGREEMENT. This Assignment contains all of the
understandings and agreements of whatsoever kind and nature existing
between Assignor and Assignee with respect to the subject matter hereof,
and any and all other prior agreements between the parties with respect to
such subject matter are hereby superseded.
19. HEADINGS. All headings used herein are inserted for
convenience and ease of reference only and shall not be considered in the
construction or interpretation of any provision of this Assignment.
20. SEVERABILITY. If any provisions of this Assignment shall be
held by a court of competent jurisdiction to be contrary to law or public
policy, or otherwise unenforceable the remaining provisions shall remain in
full force and effect and a court of competent jurisdiction shall supply a
provision or provisions to replace the affected provision(s) which most
closely approximates the original intent of the parties.
* * * * *
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IN WITNESS WHEREOF, this Assignment is executed as of the day and
year first above written.
ASSIGNOR:
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OTR,
an Ohio general partnership
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: General Partner
ASSIGNEE:
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AMLI RESIDENTIAL PROPERTIES, L.P.,
a Delaware limited partnership
By: AMLI Residential Properties Trust,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Senior Vice President
For purposes of Section 10(b) only:
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AMLI AT DANADA L.L.C.,
an Illinois limited liability company
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Senior Vice President
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SCHEDULE A
Calculation of Purchase Price
Company Value $ 71,000,000
LESS: Outstanding debt of the Company
as of the Effective Date $ 23,274,824
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Company Equity Value $ 47,725,176
Assignor's percentage interest 90%
Value of Assignor's membership interest $ 42,952,658
LESS: Assignor's share of unpaid real estate
taxes accrued by the Company and relating
to all periods prior to the Effective Date (1) $ 784,479
LESS: Assignor's share of accrued
principal and interest $ 123,826
LESS: Assignor's share of contractually committed
cost for painting of portions of the Community $ 153,900
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Total Deductions $ 1,062,205
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Purchase Price to be paid to Assignor by Assignee
on the Effective Date $ 41,890,453
(1) This amount reflects the Assignor's pro rata portion of the
Company's estimated real estate taxes for all periods prior to
the Effective Date and which the Company has not yet paid as of
the Effective Date. Because the Company makes distributions to
its members on a cash basis, this amount reflects the excess
distributions received by Assignor from the Company as a result
of non-payment of the taxes. The Purchase Price is, therefore,
reduced by this amount. A final proration of the real estate
taxes will be completed in accordance with Section 4 of the
Assignment upon receipt by the Company of the final tax xxxx.
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