Exhibit 10.1
CONTRACT
THIS CONTRACT ("Contract") is entered into as of this 7th day of
September, 2004, by and between ACQUIPORT/AMSDELL I LIMITED PARTNERSHIP and/or
its nominee ("Purchaser") and LIBERTY SELF STOR, LTD. and LIBERTY SELF STOR II,
LTD. (collectively, "Seller").
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to
sell those certain eighteen (18) self-service storage facilities ("Facilities")
set forth on Exhibit A at the price of Thirty Four Million Dollars
($34,000,000.00) ("Purchase Price"). Included in the purchase is the real
property on which the Facilities are situated, and all appurtenant rights
thereto, and all of the personal property (excluding cash) owned by Seller and
used in connection with the operation of the Facilities, including without
limitation, all fixtures, furniture, building supplies, equipment, machinery,
the trade name for the Facilities and computer software and licenses, as well as
any intangibles including without limitation the telephone numbers, and
guarantees, warranties, permits, and licenses similarly owned and/or used by
Seller. Seller shall assign to Purchaser and give to Purchaser the right to use
at the Facilities the names under which the Facilities currently operate until
such time as the yellow page ads expire for each such location (which must be
after the Closing Date), and Seller may continue to use such trade name for its
Painesville and Gahanna, Ohio facilities. The real property is described on
Exhibits Al-A18 attached hereto. Within seven (7) days from the date hereof,
Seller and Purchaser will use their best efforts to agree upon that portion of
the Purchase Price that will be allocated for each site, which agreed
allocations will be shown on Exhibit A19. The personal property is described on
Exhibits APl-AP18 attached hereto. Within seven (7) days from the date hereof,
Seller and Purchaser will use their best efforts to agree upon that portion of
the Purchase Price that will be allocated for the personal property for each
site, which agreed allocation will be shown on Exhibit AP19t, and Three Hundred
Thousand Dollars ($300,000) of which shall be allocated to the personal property
owned by Liberty Self Stor II, Ltd. The agreement for the allocations of the
Purchase Price set forth above is a condition precedent to the closing of this
transaction. The real property and the personal property at an individual
Facility are collectively referred to as the "Property" and the real property
and personal property at all Facilities are collectively referred to as the
"Properties". Within ten (10) days after the Effective Date (hereinafter
defined) Seller shall provide to Purchaser a list of all personal property owned
by Seller and used in connection with the operation of the Facilities and such
shall be part of the Property.
2. ESCROW. Purchaser and Seller shall execute three (3) copies of this
Contract and three (3) copies of the Escrow Agreement (a copy of which is
attached hereto as Exhibit B), (collectively, the "Documents"). Within ten (10)
business days after the full execution of this Contract (the "Effective Date"),
Purchaser shall deliver the Documents together with a check in the amount of One
Hundred Thousand Dollars ($100,000.00) ("Xxxxxxx Money") made payable to Lake
County Title, LLC (the "Title Agency" or "Escrow Agent") at 0000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxx 00000. Upon receipt of the Xxxxxxx Money and the fully executed
Documents, the Title Agency will deliver a fully executed set of Documents to
Seller and Purchaser. The Title Agency shall deposit the Xxxxxxx Money in an
interest-bearing account until Closing (as
hereinafter defined) in accordance with the terms of this Contract and the
Escrow Agreement. Except as provided in this Contract or the Escrow Agreement to
the contrary, all interest on the Xxxxxxx Money shall accrue for the benefit of
Purchaser.
On the Closing Date (as hereinafter defined), Purchaser shall pay
the balance of the Purchase Price in the sum of Thirty Three Million Nine
Hundred Thousand Dollars ($33,900,000.00), adjusted in accordance with the
prorations, in cash by depositing same electronically with the Title Agency.
3. OPERATIONS BEFORE CLOSING. Prior to Closing, Seller shall operate,
maintain, manage and lease each Property in the same manner as prior to the
execution of this Contract. Seller will not, without Purchaser's prior written
consent, enter into any lease agreements with tenants or modify or extend
existing leases: (1) for a term greater than one (1) year; or (2) at rental
rates less than those customarily charged in the past and without concessions or
free rent and such leases shall be on Seller's standard form; nor will Seller
enter into any new service contracts or new personal property leases other than
month to month service contracts or personal property leases with no termination
fee without Purchaser's written consent. Seller shall not enter into any leases
with any related party or entity without Purchaser's prior consent.
4. SERVICE CONTRACTS AND PERSONAL PROPERTY LEASES. At Closing, Seller
shall assign to Purchaser and Purchaser shall assume all of Seller's rights,
duties, and obligations under Seller's existing self-storage leases (the
"Leases") and Seller's existing service contracts and personal property leases
(the "Service Contracts" and "Personal Property Leases") the latter being
described on Exhibit C hereto. All Service Contracts must be terminated on or
before the Closing, be terminable on thirty (30) days' notice or be otherwise
acceptable to Purchaser in Purchaser's reasonable judgment.
5. RIGHTS OF INSPECTION.
A. Inspection Period. For and in consideration of the Xxxxxxx Money,
Purchaser shall have a period of ninety (90) days from the Effective Date
("Inspection Period"), during which time, Purchaser, or Purchaser's counsel,
accountants, agents and other authorized representatives (collectively,
"Authorized Agents"), shall be entitled to enter upon the Property for the
purpose of inspecting and examining the Property, including, without limitation,
conducting surveying, engineering, environmental tests and studies, and any such
other work as Purchaser shall consider appropriate. Purchaser and its Authorized
Agents shall have full and continuing access to the Property and all parts
thereof and Seller shall cooperate fully with Purchaser and its Authorized
Agents in Purchaser's inspection process. If Purchaser, in Purchaser's sole
discretion and opinion, is dissatisfied with the results of Purchaser's
inspection of the Property or any of the other items furnished by Seller and
reviewed by Purchaser, as set forth in this Xxxxxxxxx 0, Xxxxxxxxx may, by
written notice delivered to Seller on or prior to the expiration of the
Inspection Period, terminate this Contract, in which event the Xxxxxxx Money and
all interest earned thereon shall be immediately delivered to Purchaser, Seller
or Purchaser shall have no further obligations hereunder (except as may
otherwise be provided in this Contract) and this Contract shall be null and
void.
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B. Document Review. Seller agrees to furnish to Purchaser within
five (5) days after the Effective Date and allow Purchaser and Purchaser's
Authorized Agents, to inspect and make copies of appraisals, surveys of the
Properties, owner's title insurance policies, environmental reports and studies
prepared for the benefit of Seller, assessments (special or otherwise),
statements, ad valorem and personal property tax bills, notices or
correspondence from governmental entities with respect to the Property, books,
records, files and related items relating exclusively to the Property, estoppel
letters from all non-mini storage warehouse tenants including, without
limitation, office and retail space tenants, and any other documents or
documentation which Purchaser may reasonably request, if any, which are in
Seller's possession or readily available to Seller.
In addition to the foregoing, Seller shall make available to
Purchaser for review, at either the office of Seller or at the Property, the
originals of the Leases relating to the Property which are then in effect and
Purchaser shall have the right to make photocopies of the Leases. Seller shall
provide to Purchaser copies of the form of storage lease/agreement used for the
Property, a current rent roll, copies of monthly operating statements for the
Property for the year preceding the Effective Date, a summary of all capital
expenditures of Seller relating to the Property for the year preceding the
Effective Date, the Service Contracts and Personal Property Leases and, to the
extent the following are in Seller's possession or control or readily available
to Seller, building plans and specifications, copies of the certificate(s) of
occupancy, business operation, business registration or any similar licenses or
permits issued by the City, County and/or State relating to the Property, copies
of all warranties or guaranties provided to Seller for any improvements to the
Property, and, if applicable, copies of any pending litigation filed against the
Property or against Seller which could have adverse affect on the Property.
6. TITLE INSURANCE. On or before thirty (30) days after the Effective
Date, Seller shall provide to Purchaser through the Title Agency commitments for
the issuance of an owner's fee policy of title insurance in the amount of the
Purchase Price committing the Title Agency to issue a title insurance policy in
favor of Purchaser for the Facilities in the full amount of the Purchase Price
(the "Commitments"). Said Commitments shall commit to insure title to the
Facilities in Purchaser subject only to real estate taxes and assessments not
yet due and payable; zoning ordinances, if any; and easements, reservations and
restrictions of record which do not materially impair Purchaser's ability to
utilize the Facilities. Seller shall cause the Title Agency to also
simultaneously deliver a copy of the Commitments to Seller. Purchaser shall have
until the expiration of the Inspection Period to examine and notify Seller of
any matters shown in the Commitments which are objectionable to Purchaser. Upon
receipt of such notice, Seller shall have a reasonable period of time, not to
exceed thirty (30) days, to remove or correct such defects, excluding, however,
monetary liens which shall be discharged at or prior to Closing. If Seller does
not or cannot correct the defects, Purchaser shall, at Purchaser's option, to be
exercised by written notice to Seller within ten (10) days thereafter either (i)
elect to take title "as is" without diminution in the Purchase Price; or (ii)
terminate this Contract and receive a refund of the Xxxxxxx Money. If Purchaser
fails to give timely written notice as to which option Purchaser wishes to
exercise, then Purchaser shall be deemed to have elected to take title as is
without diminution in the Purchase Price.
At Closing, Purchaser shall obtain through the Title Agency an owners fee
policy of title insurance in the amount of the Purchase Price in accordance with
the terms and provisions of this
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Section 6. The Property is being sold free and clear of all possible mechanic's
liens for work done or material furnished in improving the Property. If any work
or improvements have been completed less than ninety (90) days prior to Closing,
Seller will furnish security against mechanic's liens or evidence of payment of
liens or acceptable release or waiver of liens. At Closing, Seller shall deliver
an affidavit to the Title Agency as to the items described in this Paragraph,
sufficient in form and substance to permit the Title Agency to issue the title
policy to Purchaser without exception for mechanic's liens.
7. DEED AND XXXX OF SALE. At Closing, Seller shall convey title to the
Facilities to Purchaser by good and sufficient Limited Warranty Deed or its
equivalent and by good and sufficient Xxxx of Sale in substantially the form of
Exhibits F and G hereto. Included in the Xxxx of Sale shall be all the trucks
and trailers at the Facilities as listed on Exhibit C provided, however, that as
of the Closing Date Purchaser shall assume and hold Seller harmless for all
vehicles leases and loans attributable to said trucks and trailers which vehicle
leases and loans are set forth in Exhibits C and G.
8. SURVEY. Within forty-five (45) days after receipt of the Commitments,
Purchaser, at Purchaser's expense may obtain ALTA Surveys of the Facilities, and
Purchaser shall provide a copy of the Surveys to Seller and to the Title Agency.
In the event that the Surveys reflect an encroachment or other matters
objectionable to Purchaser, then the provisions for notice of objections, curing
the objections, and waiver of the objections and termination of this Contract
shall be the same as those with respect to title objections set forth at Section
6 hereof. Similarly, Purchaser's options with respect to the Survey objections
shall be the same as with respect to title objections as set forth at Section 6
hereof, and Purchaser's failure to give timely notice of the exercise of its
options shall be deemed to constitute an election to proceed to Closing as is
without diminution in the Purchase Price.
9. DAMAGE, CASUALTY, CONDEMNATION. If a Property site suffers damage as a
result of any casualty or condemnation prior to the Closing Date and can be
restored for Two Hundred Fifty Thousand Dollars ($250,000) or less, then Seller
shall expeditiously commence and complete the restoration in a good and
workmanlike manner. If the cost of repair exceeds Two Hundred Fifty Thousand
Dollars ($250,000), Purchaser can elect, by notice to Seller, to either
terminate this Contract as to that damaged or condemned site only and the
Purchase Price shall be reduced by the amount allocated to that site as set
forth in Exhibits A1-A18, or require Seller to restore the damage or Purchaser
shall be entitled to receive all insurance proceeds or awards resulting from
such casualty or condemnation, and Seller shall pay to Purchaser the amount of
any deductible under such insurance policy. If restoration of the damage is not
completed within five (5) days prior to the Closing Date, then the Closing Date
will be extended until a date that is five (5) days after completion of the
restoration. All risks of loss are borne by Seller prior to Closing.
10. THE CLOSING. The closing ("Closing") shall occur at the local office
of the Title Agency on the later of the following dates: January 3, 2005 or the
last day of the month following the date Seller has obtained the required
approvals listed in Section 24 of this Contract, provided the expiration of the
Inspection Period has pre-dated any such date ("Closing Date"). At Closing,
Purchaser shall deliver to Seller the Purchase Price, and Seller
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shall provide Purchaser with the items listed in Exhibit D attached hereto. The
form of such items shall be substantially as set forth on Exhibits F, G, H, I,
J, and K hereto. The proration date ("Proration Date") shall be the Closing
Date. The following items will be prorated as of 12:01 a.m. on the Proration
Date: Income and operating expense items including, but not limited to taxes and
assessments (which shall be based on the most recently available tax duplicates
or information), rents, and any prepaid agreements approved by Purchaser,
Service Contracts, and Personal Property Leases, but not capital expense items
and debt service payments. Purchaser shall receive a credit against the Purchase
Price for all security deposits under the Leases. Seller and Purchaser shall
work together to notify utility companies of the Closing and transfer all
utilities, including telephone numbers, to Purchaser's name as of the Closing
Date. Seller shall be entitled to a refund of all utility deposits and shall pay
all utilities up to and including the Closing. Purchaser shall be responsible
for all utilities from and after the Closing.
Seller shall terminate all employees employed at the Facilities, whether
or not same are re-employed by Purchaser, and Seller shall be responsible for
all wages, bonuses, vacation pay, sick pay promised by Seller to such employees
and for any severance payment, unemployment compensation or other obligations
due such employees as a result of such termination.
Seller shall pay or cause to be paid to Purchaser, in cash at Closing,
prepaid rents paid to Seller by tenants as of the Proration Date. Except as
hereinafter provided, no proration shall be made for rents delinquent as of the
Closing Date ("Delinquent Rents"). At Closing, Purchaser shall pay Seller an
amount which is equal to seventy-five percent (75%) of Delinquent Rents of
Non-Defaulting Tenants which are delinquent thirty (30) days or less. As used
herein, Non-Defaulting Tenants means tenants which are delinquent thirty (30)
days or less. Any Delinquent Rents collected after Closing shall belong
exclusively to Purchaser and all rights to pursue collection of such amounts
shall vest solely in Purchaser.
All prorations shall be final.
11. CLOSING COSTS. Seller shall pay one-half (1/2) of all
transfer/conveyance taxes with respect to transfer of the Properties, one-half
(1/2) of the fees of the Title Agency for its services as Escrow Agent and
one-half (1/2) of the premium for an owner's policy of title insurance (ALTA
1970 Form B, amended 10/17/70 and 10/17/84) in the full amount of the Purchase
Price. All other closing costs shall be paid by Purchaser.
12. REAL ESTATE COMMISSIONS. Purchaser warrants that it has not engaged
the services of a real estate broker and agrees to indemnify, defend, and hold
harmless Seller from all claims and costs incurred by Seller as a result of
anyone's claiming by or through Purchaser any fee, commission or compensation on
account of this Contract. Seller warrants that it has not engaged the services
of a real estate broker, and Seller agrees to indemnify, defend, and hold
harmless Purchaser from all claims and costs incurred by Purchaser as a result
of anyone's claiming by or through Seller any fee, commission or compensation on
account of this Contract.
13. REMEDIES. In the event of a breach of this Contract by Seller,
Purchaser shall, as Purchaser's sole remedies, have the right to either (i)
receive a refund of the Xxxxxxx Money and terminate this Contract, in which case
neither Seller nor Purchaser shall have any further rights,
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duties or obligations hereunder; or (ii) bring and maintain an action for the
specific performance hereof. In the event of the breach of this Contract by
Purchaser, Seller, as Seller's sole remedy, shall retain the Xxxxxxx Money as
and for liquidated damages, in which event this Contract shall terminate and be
of no further force or effect and neither party shall have any further rights,
duties or obligations hereunder.
14. SELLER'S REPRESENTATIONS, WARRANTIES, AND COVENANTS. Seller
represents, warrants and covenants that:
a. As of the date hereof and as of the Closing Date, there is or
will be, to Seller's actual knowledge, no condemnation proceeding threatened or
pending and no pending or, to Seller's actual knowledge, no threatened
litigation, investigation or proceeding with reference to any Property or which
otherwise would adversely affect Seller's ability to perform Seller's
obligations hereunder.
b. Seller hereby agrees to maintain the Property in its present
condition (ordinary wear and tear excepted) and to operate the Property in a
careful and prudent manner; and to comply with all occupancy leases thereof
until the time of Closing.
c. Seller is the fee simple owner of the Property and subject to
obtaining the approvals listed in Section 24 of this Contract has full authority
to convey the Property and to execute this Contract and any and all
documentation required to effectuate the full intent and purposes of this
Contract.
d. There are no governmental liens of record affecting the Property.
e. Seller shall cooperate in all respects with Purchaser's efforts
to determine the suitability of the Property for Purchaser's intended use.
f. To Seller's actual knowledge, no adverse soil conditions exist,
the Property has not in the past been used, is not presently being used and will
not in the future (for so long as Seller owns same) be used for the handling,
storage, transportation or disposal of hazardous or toxic materials, of any kind
or nature and in the event the environmental site assessment obtained by
Purchaser indicates that the Property has been or presently is being used for
the handling, storage, transportation or disposal of hazardous or toxic
materials of any kind or nature, Purchaser may require that all such violations
be corrected by Seller, at Seller's sole cost and expense, prior to Closing.
g. All financial documentation and financial information delivered
or made available to Purchaser and/or Purchaser's Authorized Agents for review
during the Inspection Period is true and correct in all material respects.
h. To the best of Seller's knowledge, documentation and information
which is not financial in nature which has been delivered or made available to
Purchaser and/or Purchaser's Authorized Agents for review during the Inspection
Period is true and correct in all material respects.
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i. Seller has not as of the Effective Date of this Contract
distributed or authorized the distribution of any localized, mass or direct
marketing mailing which provides any coupons, discounts or other rental
concessions, rebates or free rent for any new or existing tenants of the
Property.
j. From the date hereof until Closing, Seller shall: (a) maintain in
accordance with Seller's past practice complete accurate books, accounts and
records relating to the Property; (b) continue to maintain and operate the
Property in accordance with Seller's past practices; (c) maintain the Property
in good order and condition and not permit the Property to adversely change from
its present condition; and (d) comply with the terms and provisions of all
Leases, Service Contracts, Personal Property Leases and other obligations of
Seller relating to the Property.
k. The Leases are in full force and effect and Seller is not in
default under the Leases and except as disclosed in writing by Seller, the
tenants under the Leases are not in default.
l. Each Seller is a limited liability company duly organized and in
good standing within its state or organization. This Contract has been duly
authorized by all necessary action on the part of Seller and subject to Section
24 hereof, is enforceable against Seller in accordance with its terms. Upon
receipt of the approvals listed in Section 24 of this Contract, the execution
and delivery of, and the performance by Seller of its obligations under, this
Contract will not contravene, or constitute a default under, any provision of
applicable law or regulation, Seller's organizational documents or any
agreement, judgment, injunction, order, decree or other instrument binding upon
Seller.
m. All representations, covenants and warranties of Seller set forth
in this Contract and the conditions and circumstances contained herein shall be
effective, valid, true and correct at the date of and shall survive the Closing
for one (1) year. Purchaser shall have the right to terminate this Contract and
receive a refund of its Xxxxxxx Money together with any interest earned thereon
if any of the representations, covenants and/or warranties are not valid, true
and correct in all material respects as of the Closing Date, in which event this
Contract shall be deemed null and void and Seller and Purchaser shall be
released from all obligations under this Contract, except as may be otherwise
set forth herein.
The term "actual knowledge" as used in Seller's Representations,
Warranties, and Covenants shall only mean the actual knowledge of Xxxxxxx X.
Xxxxxxx or Xxxxxx Xxxxx, with no independent investigations being required by
either of them.
15. PURCHASER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Organization and Power. Purchaser is a limited partnership duly
organized and in good standing with the State of Delaware and is qualified to do
business in Ohio. This Contract has been duly authorized by all necessary action
on the part of Purchaser and is enforceable against Purchaser in accordance with
its terms. The execution and delivery of, and the performance by Purchaser of
its obligations under, this Contract does not and will not contravene, or
constitute a default under, any provision of applicable law or regulation,
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Purchaser's organizational documents or any agreement, judgment, injunction,
order, decree or other instrument binding upon Purchaser.
(b) Investigation of the Property. Purchaser is, or as of the end of
the Inspection Period will be, familiar with the Properties and has made, or
will have made, such independent investigations as Purchaser deems necessary,
advisable or material concerning all aspects of the Properties, including, but
not limited to, the condition, use, sale, development or suitability of the
Properties for Purchaser's intended purposes.
(c) No Reliance on Seller. Except for the representations and
covenants of Seller that are specifically set forth in this Contract, Purchaser
is relying solely upon Purchaser's own inspection, investigation, and analysis
in purchasing the Properties, and, except as otherwise specifically set forth in
this Contract, Purchaser is not relying in any way upon any representations,
statements, agreements, studies, plans, reports, descriptions, guidelines or
other information or materials including the materials furnished by Seller or
its representatives, whether oral or written, express or implied, of any nature
whatsoever regarding any of the foregoing matters, except as provided in this
Contract to the contrary.
(d) "AS IS" Purchase. Purchaser acknowledges that Purchaser is a
sophisticated purchaser who is familiar with properties similar to the
Properties. Purchaser is acquiring the Properties "AS IS," "WHERE IS" and "WITH
ALL FAULTS," in its present state and condition, without representation or
warranty by Seller or any of its representatives or agents as to any matters
whatsoever except as otherwise specifically set forth in this Contract. Except
as otherwise specifically set forth in this Contract, no patent or latent
condition affecting the Properties in any way, whether or not known or
discoverable or hereafter discovered, shall affect Purchaser's obligations
hereunder, nor shall any such condition give rise to any right of damages,
rescission or otherwise against Seller.
(e) Purchaser's Disclaimer. Except as expressly set forth in this
Contract, Purchaser acknowledges and agrees that Seller has not made, does not
make and specifically negates and disclaims any representations, warranties,
promises, covenants, agreements or guaranties of any kind or character
whatsoever, whether express or implied, oral or written, past, present or
future, of, as to, concerning or with respect to (i) the value, nature, quality
or condition or the Properties, including, without limitation, the water, soil
and geology, (ii) the suitability of the Properties for any and all activities
and uses which Purchaser may conduct thereon, (iii) the compliance of or by the
Properties or its use with any laws, rules, ordinances or regulations of any
applicable governmental authority or body, (iv) the habitability,
merchantability, marketability, profitability or fitness for a particular
purpose of the Properties, (v) the manner or quality of the construction or
materials, if any, incorporated into the Properties, (vi) the manner, quality,
state of repair or lack thereof, (vii) pollution or land use laws, rules,
regulations, orders or requirements, including the existence in or on the
Properties of hazardous materials or hazardous substances, (viii) the
Properties' exact size, shape or boundary line locations, or (ix) any other
matter with respect to the Properties. Additionally, no person acting on behalf
of Seller is authorized to make, and by execution hereof Purchaser acknowledges
that no person has made, any representation, agreement, statement, warranty,
guaranty or promise regarding the Property or the transaction contemplated
herein, and no such representation, warranty,
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agreement, guaranty, statement or promise, if any, made by any person acting on
behalf of Seller shall be valid or binding upon Seller unless expressly set
forth in this Contract.
(f) Subject to the representations, warranties, covenants, rights
and agreements of Seller and Purchaser contained in this Contract, and except as
set forth in this Contract, Purchaser further acknowledges and agrees that
having been given the opportunity to inspect the Properties, Purchaser is
relying solely on its own investigation of the Properties and not on any
information provided or to be provided by Seller, and at Closing, Purchaser
shall be deemed to have agreed to accept the Properties and to have waived all
objections or claims it may have against Seller arising from or related to the
Properties or to any hazardous materials on the Properties except as set forth
in this Contract.
15. NOTICES. Any notice which any party may be required or may desire to
give hereunder shall be by overnight courier or by facsimile and shall be deemed
to have been duly given on the next business day if sent by overnight courier or
on the same day if sent by facsimile before 5:00 p.m. Eastern or Eastern
Daylight Time.
TO SELLER: TO PURCHASER
Liberty Self Stor, Ltd. Acquiport/Amsdell I Limited Partnership
0000 Xxxxxxx Xxxxxx 0000 Xxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxx 00000 Xxxxxxxxxx Xxxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxx Attn: Xxxxxxxx X. Xxxxxxxxx
Fax No.: (000) 000-0000 Fax No.: (000) 000-0000
Liberty Self Stor II, Ltd. With a Copy to:
0000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxx X. Xxxxxx, Esq.
Attn: Xx. Xxxxxx X. Xxxxx Xxxxxx & Daroff Co., L.P.A.
Fax No.: (000) 000-0000 One Corporate Exchange
00000 Xxxxxxx Xxxx Xxxxx, Xxx. 000
Xxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
With a Copy to:
Xxxxxxx & Xxxxxxxxx Co., LPA
00 Xxxxx Xxxx Xxxxx
Xxxxxxxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax No.: (000) 000-0000
TO TITLE AGENCY:
Lake County Title, LLC
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Fax No.: (000) 000-0000
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17. TIME OF ESSENCE. Time is of the essence of this Contract.
18. ATTORNEY'S FEES. If there is any controversy or claim between or among
the parties hereto, whether arising out of this Contract or any instrument or
agreement executed in connection with the transaction contemplated hereby, the
prevailing party in such controversy or claim shall be entitled to recover its
attorneys' fees, expenses and costs from the other party.
19. AGREEMENT NOT TO COMPETE. In consideration of Purchaser executing this
Contract, Seller and the "Other Parties" (Liberty Self Stor, Inc. ("Liberty"),
Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx, Xx. and Xxxxxx X. Xxxxx) who have joined
herein agree not to compete, directly or indirectly, in any capacity, with
Purchaser in the storage business in an area within a five (5) mile radius of
any Facility. On the Closing Date, Seller and the Other Parties shall execute an
agreement not to compete with Purchaser ("Agreement Not To Compete") in the form
of Exhibit K attached hereto. Notwithstanding the foregoing, it is understood
and agreed that each of Seller and the Other Parties may continue to operate the
existing self-storage facilities located in Painesville, Ohio, on Tin Man Road
in Mentor, Ohio, and in Gahanna, Ohio.
20. TIMING. Time is deemed to be of the essence hereof. If any date herein
(except the Proration Date) shall fall on a Saturday, Sunday, Monday or national
holiday (Non-business Day"), the date shall automatically be advanced to the
first Tuesday thereafter; but if that day is a Non-business Day, then the date
shall be the next business day.
21. ENTIRE AGREEMENT. This Contract and the Exhibits attached hereto
constitute the entire agreement between the parties and supersedes all other
negotiations, understandings, and representations made by and between the
parties and their agents, servants, and employees. Purchaser shall have the
right to assign its rights and obligations under this Contract, but Purchaser
shall not be released from liability as a result of such assignment.
22. COUNTERPARTS. This Contract may be executed in multiple counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
23. SECTION 1031 EXCHANGE. Purchaser acknowledges and agrees that Seller
may elect to structure the sale of the Properties as the first step in an
exchange of like-kind properties pursuant to Section 1031 of the Internal
Revenue Code. In the event that Seller so elects, Purchaser agrees to cooperate
with Seller and to execute any and all such documents as may be reasonably
requested by Seller or the Title Agency in connection therewith, provided that
in no event shall Purchaser be obligated to take title to any so-called
"Replacement Property" or otherwise incur any liabilities or expenses as a
result of Seller's such election. Seller acknowledges and agrees that Purchaser
may elect to structure the purchase of the Properties in connection with an
exchange of like-kind properties pursuant to Section 1031 of the Internal
Revenue Code. In the event that Purchaser so elects, Seller agrees to cooperate
with Purchaser and to execute any and all such documents as may be reasonably
requested by Purchaser or the Title Agency in connection therewith, provided
that in no event shall Seller be obligated to take title to any so-called
"Replacement Property" or otherwise incur any liabilities or expenses as a
result of Purchaser's such election.
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24. NECESSARY APPROVALS. Purchaser acknowledges that Liberty owns a
substantial stake in Liberty Self-Stor, Ltd. and is a publicly traded
corporation governed by the General Corporation Law of the State of Maryland
(the "MGCL"), the Securities Exchange Act of 1934 and the rules and regulations
of the Securities and Exchange Commission (the "SEC"). Purchaser further
acknowledges that Seller's obligations hereunder are conditioned upon (i) the
approval of the Board of Directors of Liberty within twenty-one (21) days
following the date of the execution of this Contract, (ii) the SEC's approval of
definitive proxy and related materials required under the Securities Exchange
Act, and (iii) the approval of the Shareholders of Liberty. Seller will use good
faith efforts to obtain all necessary approvals not later than ninety (90) days
following the expiration of the Inspection Period, provided, however, that
Seller may extend the approval period for an additional thirty (30) days if
necessary to obtain the approvals as determined by Seller in its sole
discretion. Seller shall promptly notify Purchaser with regard to the status of
Seller's efforts to secure such approvals and shall promptly notify Purchaser
following the obtaining of such approvals. In the event of the failure of either
of said conditions, this Contract shall thereupon terminate and be of no further
force or effect, the Xxxxxxx Money shall be returned to Purchaser, and neither
party shall thereupon have any further rights, duties or obligations hereunder.
Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxxx, by their execution of this Contract,
agree that subject to their receipt of a Superior Proposal (as defined in
Section 25(b)) they shall approve as such Shareholder or Directors, the sale of
the Properties and shall recommend the approval of the sale of the Properties to
such Board of Directors and Shareholders.
25. OFF MARKET AND BREAK-UP FEE.
(a) Seller and Liberty each agrees that it shall not, and shall
cause its officers, directors, agents, advisors and affiliates not to, solicit
or encourage inquiries or proposals with respect to, or engage in any
negotiations concerning, or provide any confidential information to, or have any
discussions with, any person relating to, any tender or exchange offer, proposal
for a merger, consolidation or other business combination involving Seller or
Liberty, or any proposal or offer to acquire in any manner a substantial equity
interest in, or a substantial portion of the assets of, Seller or Liberty
("Acquisition Proposal"), except to the extent that the Board of Directors of
Liberty, after consultation with independent legal counsel, determines in good
faith that the failure to take such action would constitute, or could reasonably
be expected to constitute, a breach of its fiduciary duties under applicable law
or Liberty's organizational documents. Seller shall immediately cease and cause
to be terminated any activities, discussions or negotiations conducted prior to
the date of this Contract with any parties other than Purchaser with respect to
any of the foregoing and shall use its reasonable best efforts to enforce any
confidentiality or similar agreement relating to an Acquisition Proposal.
(b) Either Purchaser or Seller may terminate this Contract in the
event that Liberty receives an Acquisition Proposal pursuant to Section 25(a)
hereof and enters into an agreement with respect to such Acquisition Proposal,
subject however, to the payment by Liberty Self Stor, Ltd. to Purchaser of a
termination fee in the amount of One Million Dollars ($1,000,000.00) plus the
return of Purchaser's Xxxxxxx Money deposit. Upon payment of the fee described
in this Section 25(b), Seller and the Other Parties shall have no further
liability or
11
obligation to Purchaser at law or in equity with respect to this Contract or the
termination thereof.
26. CONFIDENTIAL AGREEMENT. Except as permitted below in this Section 26
or by court order or by operation of law, the terms and conditions of this
Contract shall be treated as confidential by both parties, and neither any of
such terms or conditions nor any copy of this Contract shall be divulged or
provided to any third party other than the parties' respective attorneys,
agents, consultants and employees and Purchaser's lenders, if any, by either
party hereto without the prior consent of the other party hereto. Purchaser
shall cause Purchaser's attorneys, agents, consultants, employees and lenders to
retain the confidentiality required pursuant to this Section. Notwithstanding
anything to the contrary contained in this Contract (or in any document or
instrument related to this Contract), Purchaser, U-Store-It Trust and Liberty
shall be permitted to (i) disclose the existence of this Contract and the
matters set forth herein in the Form S-11 registration statement of U-Store-It
Trust (as amended from time to time), a Form 8-K to be filed by Liberty or as
may be otherwise required under the federal securities laws, and (ii) file this
Contract as an exhibit to such registration statement, Form 8-K or any other
filings required under the federal securities laws. Each of Purchaser and Seller
shall inform the other at least 24 hours prior to the filing of such
registration statement or Form 8-K. Each of Purchaser, Seller and Liberty agrees
that it will not, without the prior approval of the other parties which shall
not be unreasonably withheld, issue any press release or written statement for
general circulation relating to the transactions contemplated hereby.
27. INFORMATION AND AUDIT COOPERATION. At Purchaser's request, at any
reasonable time before or after the Closing with reasonable prior notice, Seller
shall provide to Purchaser's designated independent auditor access to the books
and records of the Properties, and all related information with respect to the
Properties for the period for which Purchaser or U-Store-It Trust is required to
have the Properties audited under the regulations of the Securities and Exchange
Commission and any subsequent period, and Seller shall provide to such auditor a
representation letter regarding the books and records of the Property, in
substantially the form of Exhibit L attached hereto, in connection with the
normal course of auditing the Facilities in accordance with generally accepted
auditing standards.
28. TAKEOVER LAW. Notwithstanding any other provision of this Contract,
Seller and Purchaser shall not take any action that would cause the transactions
contemplated by this Contract to be subject to requirements imposed by any
Takeover Law (as hereinafter defined). Seller hereby represents that it has
taken all necessary steps to exempt (and ensure the continued exemption of) the
transactions contemplated by this Contract from any applicable Takeover Law.
"Takeover Law" means any "control share," "business combination" or other
anti-takeover laws and regulations of any state applicable to either Purchaser
or Seller, as now or hereafter in effect. Purchaser hereby represents that it is
not an "interested stockholder" (within the meaning of MGCL Section 3-601) with
respect to Liberty and does not own any "control shares" (within the meaning of
MGCL Section 3-701) of Liberty.
29. DISSENTING SHARES. In the event that one or more stockholders
("Dissenting Stockholders") of Liberty shall demand the fair value of their
shares of Liberty pursuant to Sections 3-201 through 3-213 of the MGCL (the
"MGCL Dissenters Law"), the following provisions shall apply:
12
(a) The obligations of the Purchaser and the Seller under this
Contract shall each be conditioned upon the amount of shares held by Dissenting
Stockholders (such shares, the "Dissenting Shares"), expressed as a percentage
of total outstanding shares of Liberty and measured at the time of the Liberty
stockholders meeting for approval of this transaction (the "Dissenting Shares
Percentage Amount"), being no greater than 3%. Notwithstanding the foregoing,
neither party shall be permitted to assert such condition if the other party
provides a written agreement (an "Excess Dissenting Shares Agreement") to
satisfy any and all obligations of the "successor" under the MGCL Dissenters Law
with respect to an amount of Dissenting Shares equivalent to the excess of the
Dissenting Shares Percentage Amount over 3%. Liberty shall promptly notify
Purchaser of the Dissenting Shares Percentage Amount following its stockholder
meeting. In the event of the failure of such condition, this Contract shall
thereupon terminate and be of no further force or effect, the Xxxxxxx Money
shall be returned to Purchaser, and neither party shall thereupon have any
further rights, duties or obligations hereunder.
(b) Except as provided in any Excess Dissenting Shares Agreement
provided by Purchaser pursuant to Section 29(a), Liberty and Seller shall, at
their own cost and expense, satisfy any and all obligations of the "successor"
under the MGCL Dissenters Law with respect to all Dissenting Shares (including,
without limitation, any obligations of the "successor" to (i) provide notice to
"objecting stockholders" under Section 3-207 of the MGCL, and (ii) make payment
for the fair value of all Dissenting Shares).
(c) If, due to any breach of Section 29(b) or due to any applicable
law preventing the obligations of the "successor" under the MGCL Dissenters Law
to be satisfied by Seller and Liberty as contemplated by Section 29(b), any
obligations of the "successor" under the MGCL Dissenters Law are satisfied by
the Purchaser, then Liberty and Seller shall (i) immediately following any
payment by Purchaser with respect to any Dissenting Shares, purchase such
Dissenting Shares from Purchaser at a purchase price equal to the payment made
for such Dissenting Shares by Purchaser, and (ii) reimburse Purchaser for any
reasonable third party costs and expenses incurred by Purchaser in connection
with satisfying such obligations. Notwithstanding the foregoing, Seller and
Liberty shall not be required to reimburse Purchaser for any obligations assumed
by Purchaser under an Excess Dissenting Shares Agreement. In connection with any
offer to purchase Dissenting Shares made by Purchaser, Purchaser and Seller
shall use good faith efforts to agree on an appropriate purchase price to be
offered for such Dissenting Shares.
(d) The obligations of Seller and Liberty under Sections 29(b) and
(c) shall be secured by an amount (the "Restricted Amount") placed in a newly
established segregated bank account of Seller at a bank reasonably satisfactory
to the Purchaser (the "Restricted Account"). A portion of the Purchase Price
payment delivered at the Closing equal to the Restricted Amount shall be used to
fund the Restricted Account. Seller shall maintain ownership of the Restricted
Account and shall not disburse any funds from the Restricted Account unless and
until ten days after receipt by Purchaser of a written certification from an
executive officer of Liberty to the effect that no Dissenting Shares remain
outstanding and all liabilities of the "successor" under the MGCL Dissenters Law
have been satisfied (unless, within such ten day period, the Purchaser shall
dispute such written certification in writing, in which case the Restricted
Amount shall only be disbursed
13
upon a court order or the written agreement of the Purchaser and the Seller).
Such certification shall be accompanied by reasonable evidence of the
satisfaction of such liabilities (e.g., copies of cancelled share certificates
and written receipts for share payments). The Restricted Amount shall be equal
to the product of (i) the Dissenting Shares Percentage Amount multiplied by (ii)
the product of (A) .299 and (B) the sum of (1) the difference obtained by
subtracting the aggregate amount of long-term indebtedness to be repaid in
connection with the transactions contemplated hereby from the Purchase Price,
and (2) the difference obtained by subtracting the aggregate amount of long-term
indebtedness associated with Seller's remaining assets from the fair value of
such remaining assets (as reasonably determined by Seller and calculated without
duplication of items in clause (1)).
(e) Seller, Liberty and the Purchaser shall each reasonably
cooperate to effect any payments of fair value to Dissenting Stockholders
pursuant to the MGCL Dissenters Law in as efficient a manner as possible. Seller
and Liberty acknowledge that U-Store-It Trust, an affiliate of the Purchaser,
intends to qualify as a real estate investment trust ("REIT") for federal income
tax purposes. Accordingly, Seller and Liberty shall cooperate with the
Purchaser, and take all such actions as the Purchaser may reasonably request
(including, if requested by the Purchaser, effecting transfers of Dissenting
Shares from the Purchaser to a taxable REIT subsidiary of the Purchaser on the
stock transfer books of Liberty), to ensure that the transactions contemplated
by this Section 29 are consistent with the applicable requirements for REITs.
14
IN WITNESS WHEREOF, the parties have hereunto affixed their signatures as
of the date and year first above written.
SELLER:
LIBERTY SELF STOR, LTD.
an Ohio limited liability company
BY: LSSI LIMITED PARTNERSHIP
a Delaware limited partnership, Sole Member
BY: LIBERTY SELF STOR, INC.
a Maryland corporation, General Partner
BY: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Xxxxxx X. Xxxxx, President
Date: September 7, 2004
AND: LIBERTY SELF STOR II, LTD.
an Ohio limited liability company
BY: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx, Sole Member
Date: September 7, 2004
PURCHASER:
ACQUIPORT/AMSDELL I LIMITED
PARTNERSHIP
a Delaware limited partnership
By: Amsdell Partners, Inc., an Ohio corporation,
its General Partner
BY: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxx, President
Date: September 7, 2004
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OTHER PARTIES:
LIBERTY SELF STOR, INC.
BY: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Xxxxxx X. Xxxxx, President
Date: September 7, 2004
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
Date: September 7, 2004
/s/ Xxxxxxx X. Xxxxxxx, Xx.
-----------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
Date: September 7, 2004
/s/ Xxxxxx X. Xxxxx
-----------------------------------------
Xxxxxx X. Xxxxx
Date: September 7, 2004
16
