CONTRIBUTION AND EXCHANGE AGREEMENT
THIS CONTRIBUTION AND EXCHANGE AGREEMENT (the "Agreement") made this 25th
day of March, 1998, by and between PACIFICA PROGRESS/UNION LIMITED LIABILITY
COMPANY ("Contributor"), a Colorado limited liability company with an address
c/o Pacifica Holding Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxx 00000, XXXX-XXXX REALTY, L.P., a Delaware limited partnership ("MCRLP")
and XXXX-XXXX REALTY CORPORATION, a Maryland corporation ("Xxxx-Xxxx"), each
having an address at 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000.
RECITALS
A. Contributor owns various commercial properties located throughout the
Denver, Colorado metropolitan area. Xxxx-Xxxx, through MCRLP and certain
affiliated entities of MCRLP, similarly owns various commercial properties
located throughout New Jersey, New York, Pennsylvania, Nebraska, Iowa,
California, Florida, Arizona, Connecticut and Texas.
B. Contributor, MCRLP and Xxxx-Xxxx have determined that the transactions
contemplated hereby are in the respective parties' best interests.
NOW, THEREFORE, in consideration of ten dollars ($10.00), the mutual
promises hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, do hereby agree as follows:
1. SUBJECT OF CONVEYANCE.
In accordance with the terms and conditions of this Agreement, on the
Closing Date (as defined herein), Contributor agrees to contribute, convey or
otherwise transfer to certain designees of MCRLP all of Contributor's right,
title and interest in and to the assets set forth in paragraphs (a) through (h)
of this Section 1:
(a) that certain real property situate, lying and being in the State of
Colorado and being more particularly described on Schedule 1(a) (the "Land"),
which Schedule 1(a) sets forth the name, state of organization and type of
entity of Contributor of a parcel of Land and all of the improvements located on
the Land (individually, a "Building" and collectively, the "Improvements");
(b) all rights, privileges, grants and easements appurtenant to
Contributor's interests in the Land and Improvements, if any, including without
limitation, all land lying in the bed of any public street, road or alley, all
mineral and water rights and all easements, licenses, covenants and
rights-of-way or other appurtenances used in connection with the beneficial use
and enjoyment of
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the Land and Improvements (the Land and Improvements and all such rights,
privileges, easements, grants and appurtenances are sometimes collectively
referred to herein as the "Real Property");
(c) except as set forth on Schedule 1(c) all personal property, artwork,
fixtures, equipment, inventory and computer programming and software owned by
Contributor and located on any of the Real Property or used at any of the
management and corporate offices of Contributor (the "Personal Property");
(d) all leases and other agreements with respect to the use and occupancy
of the Real Property, together with all amendments and modifications thereto
(each a "Lease" and collectively, the "Leases") and any guaranties provided
thereunder, and rents, additional rents, reimbursements, profits, income,
receipts and the amount deposited (the "Security Deposit") under any Lease in
the nature of security for the performance of the Tenant's (as defined herein)
obligations thereunder;
(e) Intentionally Deleted.
(f) all permits, licenses, guaranties, approvals, certificates and
warranties relating to the Real Property and the Personal Property
(collectively, the "Permits and Licenses"), all of Contributor's rights, titles
and interests in and to those contracts and agreements for the servicing,
maintenance and operation of the Real Property ("Service Contracts") and
telephone numbers in use at any of the Real Property or the management offices
and corporate headquarters of Contributor (together with the Permits and
Licenses and the Service Contracts, the "Intangible Property");
(g) all books, records, promotional material, tenant data, leasing
material and forms, past and current rent rolls, files, statements, market
studies, keys, plans, specifications, reports, tests and other materials of any
kind owned by or in the possession of Contributor which are or may be used by
Contributor in the use and operation of the Real Property or Personal Property
(collectively, the "Books and Records"); and
(h) all other rights, privileges and appurtenances owned by Contributor,
if any, and in any way related to the rights and interests described above in
this Section.
The Real Property, the Personal Property, the Leases, the Intangible
Property, the Books and Records and the other property interests being conveyed
hereunder are hereinafter collectively referred to as the "Property".
For all purposes herein, unless the context clearly dictates otherwise,
any reference herein to "Contributor" shall be deemed to be a reference to the
entity which is to convey any assets hereunder to MCRLP or its designees.
2. PAYMENT TERMS.
2.1 Total Exchange Consideration. The aggregate consideration for
the Property (the "Exchange Consideration") is Eleven Million Two Hundred
Seventy Eight Thousand and xx/100 ($11,278,000.00) Dollars, to be paid by MCRLP
in accordance with Section 2.2. The
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Exchange Consideration shall be allocated among the Property as set forth on
Schedule 2.1 (the "Allocated Property Values" and each an "Allocated Property
Value").
2.2 The Property(a) At the Closing (as defined herein), and upon
satisfaction of the terms and conditions provided herein, Contributor agrees to
contribute the Property to MCRLP or its Permitted Assignees (hereinafter
defined), and MCRLP (and Xxxx-Xxxx where applicable) agrees, subject to
adjustment as set forth herein, (i) to pay to Contributor or its designees, in
cash, the amount of Seven Million Seven Hundred Seventy-Five Thousand Four
Hundred Sixty Three and 51/100 ($7,775,463.51) Dollars (the "Cash Payment"),
allocated as set forth in Schedule 2.2(a)(i); (ii) to issue the Contributor
Units (hereinafter defined) in an amount set forth on Schedule 2.2(a)(ii) to
such persons as Contributor shall direct in writing (as set forth in Section
10.2(aa)) as soon as practicable following the date hereof (the "Unit Holders");
and (iii) to take title to certain Property subject to certain mortgages set
forth in Schedule 2.2(a)(iii) (collectively, the "Mortgages"). Notwithstanding
the foregoing, Xxxx-Xxxx shall have the right, in its sole discretion, to cause
any or all of the Mortgages to be satisfied at the Closing and pay for any
pre-payment fees or charges payable under such Mortgages.
(b) Simultaneous with MCRLP accepting the Property, MCRLP
shall issue, subject to adjustments as set forth herein, ___________ common
units of limited partnership interests in MCRLP (the "Contributor Units")
convertible into Xxxx-Xxxx Common Stock ("Common Stock"); provided, however,
that the Unit Holders shall be issued and shall hold the Contributor Units in
accordance with the provisions of Section 19.
(c) At the Closing, MCRLP shall issue to Contributor and/or
the Unit Holders or their designees certificates representing in the aggregate
________ Contributor Units (the "Permanent Certificates"), which Permanent
Certificates shall contain the legend set forth on Exhibit 10.2(ee).
(d) All rights and benefits incidental to the ownership of the
Contributor Units received in exchange for the Property, including, but not
limited to the right to receive distributions, voting rights and the right to
exchange the Contributor Units for shares of Common Stock, shall accrue for the
benefit of the Unit Holders commencing on the Closing Date (as defined herein).
(e) With respect to the first Partnership Record Date (as
defined in the OP Agreement (as defined below)) on or after the Closing, the
Unit Holders shall receive distributions payable with respect to the Contributor
Units on a pro rata basis based upon the number of days during the calendar
quarter preceding such Partnership Record Date that the Unit Holders held
Contributor Units.
2.3 Intentionally Deleted.
2.4 Intentionally Deleted.
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3. INSPECTION PERIOD; MCRLP'S RIGHT OF TERMINATION
AND REJECTION PRIOR TO CLOSING.
3.1 Prior to the Closing (the "Inspection Period"), time being of
the essence as to each such date, MCRLP, at its sole cost and expense, may
perform, or cause to be performed, tests, investigations and studies of or
related to the Property, including, but not limited to, soil tests and borings,
ground water tests and investigations, percolation tests, surveys,
architectural, engineering, subdivision, environmental, access, financial,
market analysis, development and economic feasibility studies and other tests,
investigations or studies as MCRLP, in its sole discretion, determines is
necessary or desirable in connection with the Property and may inspect the
physical (including environmental) and financial condition of the Property,
including but not limited to Leases, Service Contracts, copies of Contributor's
Tax Returns and the Property Financials (as hereinafter defined) as of and for
the years ending December 31, 1995, 1996 and 1997, engineering and environmental
reports, development approval agreements, permits and approvals, which
inspection shall be satisfactory to MCRLP in its sole discretion. Contributor
agrees to cooperate with MCRLP in such review and inspection and, to the extent
not yet delivered, shall deliver said documents and information to MCRLP within
ten (10) days from the date hereof. MCRLP may terminate this Agreement for any
reason, by written notice given to Contributor, prior to the expiration of the
Inspection Period. In the event MCRLP terminates this Agreement during the
Inspection Period, this Agreement shall be null and void and the parties hereto
shall be relieved of all further obligations hereunder except as otherwise
provided herein. In the event MCRLP does not terminate this Agreement by the end
of the Inspection Period, then MCRLP shall be deemed to have elected not to
terminate this Agreement.
3.2 During the Inspection Period, MCRLP, its agents and contractors
shall have unlimited access to the Property and other information pertaining
thereto in the possession or within the control of Contributor, during normal
business hours, for the purpose of performing such studies, tests, borings,
investigations and inspections for the purposes described in Section 3.1 above.
Such right of inspection and the exercise of such right shall not constitute a
waiver by MCRLP of the breach of any representation or warranty of Contributor
which might, or should, have been disclosed by such inspection. Contributor
shall cooperate with MCRLP in facilitating its due diligence inquiry and shall
obtain, and use commercially reasonable efforts to obtain, any consents that may
be necessary in order for MCRLP to perform the same.
3.3 To assist MCRLP in its due diligence investigation of the
Property, Contributor shall deliver to MCRLP, by the execution and delivery of
this Agreement, true and correct copies of all existing Phase I environmental
studies (the "Phase I Reports") in the possession or control of Contributor with
respect to the Real Property, which Phase I Reports are set forth on Schedule
3.3 annexed hereto. In the event that MCRLP determines that it requires any new
Phase I Reports or updates thereof, the cost of such reports or updates shall be
borne by MCRLP. If MCRLP reasonably requires that further environmental
investigations be undertaken beyond any new Phase I or updated Phase I Report,
all engineering costs and expenses relating to said further environmental
investigations shall be borne by Xxxx-Xxxx.
3.4 Intentionally Deleted.
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3.5 During the Inspection Period, Xxxx-Xxxx and MCRLP shall provide
to Contributor and its agents and advisors reasonable access to Xxxx-Xxxx'x and
MCRLP's books and records, and Xxxx-Xxxx and MCRLP shall provide Contributor
such other reasonable information including, without limitation, all Securities
and Exchange Commission filings of MCRLP and Xxxx-Xxxx and federal, state, and
local income, excise, franchise, and all other tax filings, in order to permit
Contributor, at its sole cost and expense, to perform reasonable due diligence
on such parties. Nothing arising from Contributor's inspection or due diligence
as permitted by this Section shall give rise to a right of Contributor to
terminate this Agreement.
3.6 Xxxx-Xxxx shall have the right, without the obligation, to
terminate this Agreement if (i) at any time prior to the Closing Date, Xxxx-Xxxx
determines in its sole discretion, that any of the Property is subject to
materially adverse environmental conditions, including, without limitation, any
environmental condition that has a material adverse affect on the property value
of any Real Property, on the current use of any Real Property, on groundwater
at, on, under, about or emanating from any Real Property or on the ability of
Xxxx-Xxxx or MCRLP to finance any Real Property; or (ii) Contributor is unable
to obtain the approval of any third-party partner of the Contributors to the
terms of this Agreement; or (iii) Xxxx-Xxxx determines that certain of the
indebtedness encumbering the Property cannot be satisfactorily satisfied or
restructured.
4. TITLE; MATTERS TO WHICH THIS SALE IS SUBJECT.
4.1 As of the Closing Date, title to the Property shall be subject
only to the following (collectively, the "Permitted Encumbrances"):
(a) The liens of real estate taxes, personal property taxes,
water charges, and sewer charges provided the same are not yet due and payable,
but subject to adjustment as provided herein;
(b) the rights of those parties occupying space at any of the
Improvements (collectively, "Tenants") as tenants only;
(c) those restrictions, covenants, agreements, easements,
matters and things affecting title to the Real Property as of the date hereof
and more particularly described in Schedule 4.1(c) annexed hereto and by this
reference made a part hereof and such other easements, covenants and
restrictions which are entered into with the consent of MCRLP after the date
hereof, such consent not to be unreasonably withheld, delayed or conditioned;
(d) any and all laws, statutes, ordinances, codes, rules,
regulations, requirements, or executive mandates affecting the Real Property
including, without limitation, those related to zoning and land use, as of the
date hereof;
(e) the state of facts shown on the surveys described on
Schedule 4.1(e) for each of the individual properties comprising the Real
Property and the Earnout Properties;
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(f) the Service Contracts;
(g) any utility company rights, easements and franchises to
maintain poles, lines, wires, cables, pipes, boxes and other fixtures and
facilities in, over, under or upon the Real Property, provided the same do not
impair, in other than a de minimis manner, the present use of the Real Property;
(h) such matters as the Title Company (as hereinafter defined)
shall be willing, without special premium, to omit as exceptions to coverage;
(i) the lien of the Mortgages (but on the terms and conditions
of this Agreement).
4.2 Prior to the date hereof, Contributor shall have directed Land
Title Guarantee Company (the "Title Company"), as agent for Chicago Title
Insurance Company, to prepare a title insurance search and commitment for
owner's title insurance policy for the Real Property (the "Title Commitment").
MCRLP shall cause the Title Company to promptly deliver a copy of the same to
Contributor and its counsel. If any defects, objections or exceptions in the
title to the Real Property appear in the Title Commitment (other than the
Permitted Encumbrances) which MCRLP is not required to accept under the terms of
this Agreement, Contributor may, at its election, undertake to eliminate such
unacceptable defects, objections or exceptions, it being agreed that except as
provided below, Contributor shall have no obligation to incur any expense in
connection with curing such defects, objections or exceptions, other than (i)
judgments against Contributor; (ii) mortgages or other liens which can be
satisfied by payment of a liquidated amount, other than the Mortgages; and (iii)
defects, objections or exceptions which can be removed by payments not to exceed
$100,000.00 per Building in the aggregate. Contributor, in its discretion, may
adjourn the Closing for up to sixty (60) days in order to eliminate unacceptable
defects, objections or exceptions. If, after complying with the foregoing
requirements, Contributor is unable to eliminate all unacceptable defects,
objections or exceptions in accordance with the terms of this Agreement on or
before such adjourned date for the Closing, MCRLP shall elect either (i) to
terminate this Agreement by notice given to Contributor, in which event the
provisions of Section 23.2(a) shall apply, or (ii) to accept title subject to
such unacceptable defects, objections or exceptions and receive no credit
against or reduction of the consideration to be given hereunder for the
Property. Contributor agrees and covenants that it shall not voluntarily place
any encumbrances or restrictions on title to the Real Property from and after
the date of the first issuance of the Title Commitment for said Property, except
for the right to reserve easements for utilities and ingress and egress
encumbering the Real Property (post-closing) for the benefit of adjacent
properties owned by Contributor (or any affiliate thereof) upon the written
consent of MCRLP, which consent shall not be unreasonably withheld or delayed;
and so long as the mortgagees of the Mortgages shall consent to the reservation
of the same. Xxxx-Xxxx and MCRLP covenant and agree that they shall consult with
Contributor prior to causing any other person or entity to request any
inspection of the Real Property by any governmental entity. Contributor
recognizes that Xxxx-Xxxx'x and MCRLP's due diligence necessitates said
inspection. Xxxx-Xxxx and MCRLP agree that they shall conduct any due diligence
with such governmental entity with a view toward maintaining the confidentiality
of the transaction contemplated by this Agreement.
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4.3 It shall be a condition to Closing that Contributor conveys, and
that the Title Company insures, title to the Real Property in the amount of the
Allocated Property Value thereof (at a standard rate for such insurance) in the
name of MCRLP or its designees, after delivery of the Deed (as hereinafter
defined) by a standard 1992 ALTA Owner's Policy, with ALTA endorsements, to the
extent that the premium for such endorsements is paid by MCRLP, for the Real
Property as required by MCRLP attached, free and clear of all liens,
encumbrances and other matters, other than the Permitted Encumbrances (the
"Title Policy"). The Title Company shall provide affirmative insurance that (i)
the exception for taxes shall apply only to the current taxes not yet due and
payable; and (ii) to the extent that the premium for such endorsements is paid
by MCRLP, (a) any Permitted Encumbrances have not been violated, and that any
future violation thereof will not result in a forfeiture or reversion of title;
and (b) MCRLP's contemplated use of the Real Property will not violate the
Permitted Encumbrances. Contributor shall provide such affidavits and
undertakings as the Title Company insuring title to the Real Property may
require and shall cure all other defects and exceptions other than the Permitted
Encumbrances and as required pursuant to Section 4.2. The words "insurable
title" and "insurable" as used in this Agreement are hereby defined to mean
title which is insurable at standard rates (without special premium) by the
Title Company without exception other than the Permitted Encumbrances, and
standard printed policy and survey exceptions.
4.4 Contributor shall cause one or more surveyors acceptable to
MCRLP to deliver to MCRLP a survey or surveys of the Real Property acceptable to
MCRLP in all respects and in conformity with ALTA standards. MCRLP shall, at
MCRLP's sole cost and expense and with Contributor's cooperation and assistance,
cause the surveyor to update the survey no more than thirty (30) days prior to
the Closing Date and shall have the general survey exception removed from the
Title Policy and the survey affirmatively insured, to the extent that the
premium for such endorsement is paid by MCRLP, to MCRLP.
4.5 Any unpaid taxes, water charges, sewer rents and assessments,
together with the interest and penalties thereon to a date not less than seven
(7) business days following the Closing Date (in each case subject to any
applicable apportionment), and any mortgages or other liens created by
Contributor, which Contributor is obligated to pay and discharge pursuant to the
terms of this Agreement, together with the cost of recording or filing of any
instruments necessary to discharge such liens and such judgments, shall be paid
at the Closing by Contributor. Contributor shall deliver to MCRLP, on the
Closing Date, instruments in recordable form sufficient to discharge any such
mortgages or other liens which Contributor is obligated to pay and discharge
pursuant to the terms of this Agreement.
4.6 If the Title Commitment discloses judgments, bankruptcies or
other returns against other persons or entities having names the same as or
similar to that of Contributor, Contributor shall, upon request, deliver to the
Title Company affidavits showing that such judgments, bankruptcies or other
returns are not against Contributor, or any of its affiliates. Upon request by
MCRLP, Contributor shall deliver any affidavits and documentary evidence as are
reasonably required by the Title Company to eliminate the standard exceptions on
the ALTA Owner's Policy.
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5. REPRESENTATIONS AND WARRANTIES OF CONTRIBUTOR.
5.1 In order to induce MCRLP and Xxxx-Xxxx to perform as required
hereunder, Contributor hereby warrants and represents to MCRLP and Xxxx-Xxxx the
following with respect to the Property:
(a) Contributor is a duly organized and validly existing
entity, organized and in good standing under the laws of the state of its
formation, as more particularly set forth in Exhibit A hereto, is duly
authorized to transact business in the State of Colorado, has all requisite
power and authority to execute and deliver this Agreement and all other
documents and instruments to be executed and delivered by it hereunder, and to
perform its obligations hereunder and under such other documents and instruments
in order to sell the Property in accordance with the terms and conditions
hereof. All necessary actions of the partners, members, shareholders and/or
principals of Contributor to confer such power and authority upon the persons
executing this Agreement and all documents which are contemplated by this
Agreement on its behalf have been taken.
(b) Intentionally Deleted.
(c) This Agreement, when duly executed and delivered, will be
the legal, valid and binding obligation of Contributor, enforceable in
accordance with the terms of this Agreement. The performance by Contributor of
its duties and obligations under this Agreement and the documents and
instruments to be executed and delivered by it hereunder will not conflict with,
or result in a breach of, or default under, any provision of any of the
organizational documents of Contributor or any agreements, instruments, decrees,
judgments, injunctions, orders, writs, laws, rules or regulations, or any
determination or award of any court or arbitrator to which Contributor is a
party or by which its assets are or may be bound.
(d) Annexed hereto as Schedule 5.1 (d) is a true, complete and
correct schedule of all of the Leases. The Leases are valid and bona fide
obligations of the landlord and Tenants thereunder and are in full force and
effect. To the best of Contributor's knowledge, no defaults exist thereunder and
no condition exists which, with the passage of time or the giving of notice or
both, will become a default; the Leases constitute all of the leases, tenancies
or occupancies affecting the Real Property on the date hereof; all Tenants have
commenced occupancy; there are no agreements (other than the Leases) which
confer upon any Tenant or any other person or entity any rights with respect to
the Property, nor is any Tenant entitled now or in the future to any concession,
rebate, offset, allowance or free rent for any period, nor has any such claim
been asserted by any Tenant.
(e) Annexed hereto as Schedule 5.1(e) (the "Rent Roll") is a
listing of the following, which is true, complete and correct in all respects
for each Building: (i) the name of each Tenant; (ii) the fixed rent actually
being collected; (iii) the expiration date or status of each Lease (including
all rights or options to renew); (iv) the Security Deposit, if any; (v) whether
there is any guaranty of a Tenant's obligations from a third party, and if so
the nature of said guaranty; (vi) any written notices given by any Tenant of an
intention to vacate space in the future; (vii) the base
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year(s) and base year amounts for all items of rent or additional rent billed to
each Tenant on that basis; and (viii) any arrearages of any Tenant beyond thirty
(30) days.
(f) To the knowledge of Contributor, Contributor has performed
all of the obligations and observed all of the covenants required of it as
landlord under the terms of the Leases. Except as set forth on Schedule 5.1(f)
annexed hereto, all work, alterations, improvements or installations required to
be made for or on behalf of all Tenants under the Leases have in all respects
been carried out, performed and complied with, and there is no agreement with
any Tenant for the performance of any work to be done in the future. To the
knowledge of Contributor, except as set forth on Schedule 5.1(f), no work has
been performed at any Building which would require an amendment to the
certificate of occupancy for such Building for which an amendment has not been
obtained, and any and all work performed at the Real Property to the date hereof
and to the Closing Date has been and will be in accordance with the rules, laws
and regulations of all applicable authorities. All bills and claims for labor
performed and materials furnished to or for the benefit of the Property arising
prior to the Closing Date will be paid in full by Contributor within customary
time periods, not to exceed forty-five (45) days from the receipt of an invoice
by Contributor. The tenant improvement credit in the amount of $190,000, due to
Arbitration Forums under its lease at 141 Union has been paid by Contributors
prior to Closing.
(g) There are no service contracts, union contracts,
employment agreements or other agreements affecting the Property or the
operation thereof, except the Service Contracts and other contracts and
agreements set forth on Schedule 5.1(g) annexed hereto. All of the Service
Contracts are and will on the Closing Date be unmodified and in full force and
effect without any material default or claim of material default by any of the
parties thereto. All sums presently due and payable by Contributor under the
Service Contracts have been fully paid and all sums which become due and payable
between the date hereof and the Closing Date shall be fully paid by Contributor
within customary time periods, not to exceed forty-five (45) days from the
receipt of an invoice by Contributor. All of the Service Contracts may be
terminated on not more than sixty (60) days notice without the payment of any
fee or penalty, and the representation contained in this sentence is not subject
to being modified by the limitations of Section 5.5. There are no employees of
Contributor, or an affiliate of Contributor, working at or in connection with
the Real Property pursuant to any of the Service Contracts, other contracts and
employment agreements, except as set forth on Schedule 5.1(g).
(h) Except as set forth on Schedule 5.1(h) annexed hereto,
there are no actions, suits, labor disputes, litigation or proceedings currently
pending or, to the knowledge of Contributor, threatened against Contributor
(with respect to the Property being sold) or all or any part of the Property,
the environmental condition thereof, or the operation thereof.
(i) Except as set forth on Schedule 5.1(i) annexed hereto,
Contributor has received no written notice and has no knowledge of (i) any
pending or contemplated annexation or condemnation proceedings, or private
purchase in lieu thereof, affecting or which may affect the Real Property or any
part thereof, (ii) any proposed or pending proceeding to change or redefine the
zoning classification of all or any part of the Real Property, (iii) any
proposed or pending special assessments affecting the Real Property or any
portion thereof, (iv) any penalties or interest due with
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respect to real estate taxes assessed against the Real Property, or (v) any
proposed changes in any road or grades with respect to the roads providing a
means of ingress and egress to the Real Property. Contributor agrees to furnish
MCRLP with a copy of any such notice received within two (2) business days after
receipt.
(j) Contributor has provided MCRLP with all reports in
Contributor's possession or under its control related to the physical condition
of the Real Property.
(k) Except as set forth on Schedule 5.1(k) annexed hereto,
Contributor has no knowledge of any notices, suits, or judgments relating to any
violations (including environmental) of any laws, ordinances or regulations
affecting the Real Property, or any violations or conditions that may give rise
thereto, and has no reason to believe that any agency, board, bureau,
commission, department or body of any municipal, county, state or federal
governmental unit, or any subdivision thereof, having, asserting or acquiring
jurisdiction over all or any part of the Real Property or the management,
operation, use or improvement thereof (collectively, the "Governmental
Authorities" or "Governmental Authority" as the context requires) contemplates
the issuance thereof, and there are no outstanding orders, judgments,
injunctions, decrees or writ of any Governmental Authorities against or
involving Contributor or the Real Property. For purposes of this Agreement, the
term "Governmental Authority" shall also include the Internal Revenue Service
and any other federal, state, local or foreign taxing authority.
(l) There are no employees of Contributor or any affiliates of
Contributor working at or in connection with the Real Property except as set
forth on Schedule 5.1(l).
(m) Annexed hereto as Schedule 5.1(m) is a schedule of all
leasing commission obligations affecting the Property. The respective
obligations of Contributor and MCRLP with respect to said commissions are set
forth in Section 14.
(n) Contributor has not made a general assignment for the
benefit of creditors, filed any voluntary petition in bankruptcy or suffered the
filing of any involuntary petition by Contributor's creditors, suffered the
appointment of a receiver to take possession of all, or substantially all, of
Contributor's assets, suffered the attachment or other judicial seizure of all,
or substantially all, of Contributor's assets, admitted in writing its inability
to pay its debts as they come due or made an offer of settlement, extension or
composition to its creditors generally.
(o) Except for the Mortgages and otherwise as set forth on
Schedule 5.1(o), the Personal Property is now owned and will on each of the
Closing Date be owned by Contributor free and clear of any conditional bills of
sale, chattel mortgages, security agreements or financing statements or other
security interests of any kind.
(p) To Contributor's knowledge, Contributor is not in default
under the Mortgages. True, correct and complete copies of the Loan Documents
have been delivered to MCRLP. The Loan Documents will not be amended or modified
except as required by Xxxx-Xxxx prior to the Closing Date.
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(q) Intentionally Deleted.
(r) Intentionally Deleted.
(s) Contributor has no knowledge that any part of the Real
Property has been designated as wetlands or any other word of similar purport or
meaning under the Federal Water Pollution Control Act, 33 U.S.C. ss.1251 et
seq.; the Colorado Water Quality Control Act, Colo. Rev. Stat. Section 25-8-101
et seq; or any other applicable federal, state, county or municipal statute,
ordinance, rule, regulation, order or code.
(t) To the best of Contributor's knowledge, there are no
aboveground or underground storage tanks or vessels at the Real Property,
regardless of whether or not such tanks or vessels are regulated tanks or
vessels, except as set forth on Schedule 5.1(t).
(u) Contributor has no knowledge of outstanding requirements
or recommendations by (i) any insurance company currently insuring the Property;
(ii) any board of fire underwriters or other body exercising similar functions;
or (iii) the holder of any mortgage encumbering any of the Property, which
require or recommend any repairs or work of a material nature to be done on the
Property.
(v) The financial statements, including the income and expense
statements and the balance sheets of Contributor and its affiliates, excluding
only those assets, liabilities and operations not contemplated to be contributed
pursuant to this Agreement, relating to Contributor's ownership and operation of
the Property and the related statement of income, partners' capital and cash
flows, including the footnotes thereto (the "Property Financials") as of and for
the years ending December 31, 1995, 1996 and 1997, fairly present the financial
position of Contributor relating to the Property as of such dates and the
results of operations and cash flows of Contributor relating to the ownership
and operation of the Property for such respective periods. The Property
Financials from January 1, 1998, through the most recent month ending prior to
the Closing Date, fairly present the financial position of the Property relating
to the ownership and operation of the Property as of such date (subject to the
normal year-end adjustments described in Schedule 5.1(v)) and with all interim
financial statements of the Property heretofore delivered to MCRLP on behalf of
Contributor.
(w) Except as set forth in Schedule 5.1(w), Contributor does
not maintain any 401(k) savings plans, pension plans, multi-employer plans (as
defined in Section 3(37) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA")), employee benefit plans (as defined in ERISA) or employee
welfare plans providing for benefits to Contributor's employees (each, a
"Contributor Plan"). From and after the date hereof, Contributor shall not adopt
a Contributor Plan. Xxxx-Xxxx shall have no liability to any current or former
employees of Contributor or any affiliate thereof, including, without
limitation, any liabilities which may arise as a result of the consummation of
the transactions contemplated by this Agreement, under any plans or programs
listed on Schedule 5.1(w), or arising under applicable federal or state law,
including, without limitation, under the Worker Adjustment and Retraining
Nonfiction Act (WARN) and Consolidated Omnibus Budget Reconciliation Act of 1985
(COBRA).
32
(x) Intentionally Deleted.
(y) Except as disclosed in the Phase I Reports or otherwise
set forth in Schedule 5.1(y):
(i) To the best of Contributor's knowledge, no
Governmental Authority has demanded in writing, addressed to Contributor or any
of its affiliates, counsel or agents, that any Contaminants (as defined herein)
be cleaned up or environmentally remediated at any Real Property, which has not
been cleaned up or environmentally remediated.
(ii) To the best of Contributor's knowledge, no
Contaminants have been Discharged (as hereinafter defined) which would allow a
Governmental Authority to demand that a cleanup be undertaken.
(iii) To the best of Contributor's knowledge, no
ss.104(e) informational request, issued pursuant to CERCLA (as hereinafter
defined) with respect to the Real Property has been received by Contributor.
(iv) To the best of Contributor's knowledge, all
pre-existing aboveground and underground storage tanks and vessels, if any, at
the Real Property have been removed and their contents disposed of in accordance
with and pursuant to all applicable Environmental Laws.
(v) To the best of Contributor's knowledge, there is no
asbestos or asbestos containing material requiring remediation under
Environmental Laws (as hereinafter defined) on the Real Property, except as set
forth on Schedule 5.1(y).
(vi) To the best of Contributor's knowledge, all
transformers and capacitors containing polychlorinated biphenyls ("PCBs") , and
all "PCB Items", as defined in 40 CFR, ss.761.3, located on or affecting the
Real Property, are identified in Schedule 5.1(y) and are in compliance with all
Environmental Laws.
(vii) To the best of Contributor's knowledge, Pacifica
has all material certificates, licenses and permits (the "Permits"), including
without limitation, environmental Permits, required to operate the Real
Property. To the best of Contributor's knowledge, there is no violation of any
Environmental Laws with respect to any Permits, all Permits are in full force
and effect, are transferable with the Real Property, as the case may be, without
additional payment by MCRLP, and shall, upon closing, be transferred to MCRLP by
Contributor.
(viii) To the best of Contributor's knowledge, the Real
Property has not been used during the period of Contributor's ownership as solid
wastes disposal sites and facilities as defined in the Colorado Solid Wastes
Disposal Sites and Facilities Law, Colo. Rev. Stat. Section 30-20-100.5 et seq.
and the regulations promulgated thereunder.
33
(ix) To the best of Contributor's knowledge, there are
no engineering or institutional controls at the Real Property, including without
limitation, any deed notice, declaration of environmental restriction,
groundwater classification exception area, well restriction area or other notice
or use limitations pursuant to Colo. Rev. Stat. Section 00-00-000 et seq. and
the regulations promulgated thereunder.
(x) Contributor has not transported any Contaminants
from the Real Property to another location in violation of Environmental Laws.
(xi) To the best of Contributor's knowledge, there are
no federal or state liens, as referenced under CERCLA and the regulations
promulgated thereunder, or under any other applicable Environmental Law that
have attached to the Real Property.
(xii) Contributor has provided MCRLP with all
environmental site assessments, investigations, and documents and all other
Environmental Documents (as that term is defined below) in its possession or
under its control and shall continue to do so after execution of this Agreement
promptly upon its receipt.
(xiii) For purposes of this Agreement, the following
words shall have the respective meaning set forth below:
(A) "Contaminants" shall include, without
limitation, any regulated substance, toxic substance, hazardous substance,
hazardous waste, pollution, pollutant or contaminant, as defined or referred to
in the Resource Conservation and Recovery Act, as amended, 42 U.S.C. ss.6901 et
seq.; the Comprehensive Environmental Response, Compensation and Liability Act,
as amended, 42 U.S.C. ss.9601 et seq. ("CERCLA"); the Water Pollution and
Control Act, 33 U.S.C. ss.1251 et seq.; together with any amendments thereto,
regulations promulgated thereunder and all substitutions thereof, as well as
words of similar purport or meaning referred to in any other applicable federal,
state, county or municipal environmental statute, ordinance, rule or regulation,
including, without limitation, asbestos, polychlorinated biphenyls, urea
formaldehyde and petroleum products and petroleum based derivatives.
(B) "Discharge" shall mean the releasing,
spilling, leaking, leaching, disposing, pumping, pouring, emitting, emptying,
treating or dumping of Contaminants at, into, onto or from the Property
regardless of whether the result of an intentional or unintentional action or
omission.
(C) "Environmental Documents" shall mean all
environmental documentation in the possession or under the control of
Contributor concerning the Property or its environs, including, without
limitation, all sampling plans, cleanup plans, preliminary assessment plans and
reports, site investigation plans and reports, remedial investigation plans and
reports, remedial action plans and reports, or the equivalent, sampling results,
sampling result reports, data, diagrams, charts, maps, analysis, conclusions,
quality assurance/quality control documentation, correspondence to or from any
Governmental Authority, submissions to any
34
Governmental Authority and directives, orders, approvals and disapprovals issued
by any Governmental Authority.
(D) "Environmental Laws" means each and every
applicable federal, state, county or municipal statute, ordinance, rule,
regulation, order, code, directive or requirement of any Governmental Authority
in any way related to Contaminants.
(z) Contributor and its affiliated entities shall have timely
paid all Taxes (as defined herein) due and payable on or prior to the Closing
Date in connection with the ownership and/or operation of the Property (by them
or any predecessor entities) or their businesses for which MCRLP (or any of its
direct or indirect partners) could be held directly or indirectly liable or a
claim could be made against the Property. Contributor and its affiliated
entities shall have timely filed all Tax Returns (as defined herein) required to
be filed on or prior to the Closing Date in connection with the ownership and/or
operation of the Property (by them or any predecessor entities) or their
businesses, and the non-timely filing (or non-filing) of which could result in
direct or indirect liability to MCRLP (or any of its direct or indirect
partners) or a claim against the Property. Each such Tax Return is complete and
accurate in all respects. Contributor and its affiliated entities shall have
timely paid or will timely pay, or shall have provided for or will provide for a
cash reserve for the payment of, all Taxes due and payable on or after the
Closing Date for all taxable periods (or portions thereof) ending on or prior to
the Closing Date (a "Pre-Closing Tax Period" or "Pre-Closing Tax Periods"), and
in connection with the ownership and/or operation of the Property (by them or
any predecessor entities) or their businesses for which MCRLP (or any of its
direct or indirect partners) could be held directly or indirectly liable or a
claim could be made against the Property. Contributor and its affiliated
entities shall timely file all Tax Returns which relate to all Pre-Closing Tax
Periods but which are required to be filed after the Closing Date in connection
with the ownership and/or operation of the Property (by them or any predecessor
entities) or their businesses, the non-timely filing (or non-filing) of which
could result in direct or indirect liability to MCRLP (or any of its direct or
indirect partners) or a claim against the Property. Each such Tax Return will be
complete and accurate in all respects. True and complete copies of all Tax
Returns filed by Contributor for taxable periods beginning on or after January
1, 1994, and all written communications relating thereto, have been, or will be
upon request, delivered to Xxxx-Xxxx. Contributor has also provided, or will
also provide upon request, to Xxxx-Xxxx copies of: (i) any letter ruling,
determination letter or similar document issued to Contributor by any
Governmental Authority, and (ii) any closing or other agreement entered into by
Contributor with any Government Authority. Except as set forth on Schedule
5.1(z), there are no ongoing Audits or Audits pending or, to the knowledge of
Contributor and each of its affiliated entities, threatened with respect to the
ownership and/or operation of the Property (by Contributor, its affiliated
entities or any of their predecessor entities) or the businesses of Contributor
or any of its affiliated entities, which could result in direct or indirect
liability to MCRLP (or any of its direct or indirect partners) or a claim
against the Property. There are no agreements or waivers extending the statutory
period of limitations with respect to any such Tax Returns or for the assessment
or collection of any such Taxes. No claim has ever been made by a Governmental
Authority in a jurisdiction where Contributor does not file Tax Returns that it
is or may be subject to taxation by that jurisdiction.
35
(aa) Annexed hereto as Schedule 5.1(aa) is a listing, for
federal income tax purposes, of the following information, which is true,
complete and correct in all aspects for each item of Property: (i) its adjusted
basis as of the first day of Contributor's taxable year which includes the
Closing Date; (ii) the date placed in service; (iii) the depreciation method;
and (iv) the remaining useful life.
(bb) Subject to the provisions of Section 5.5, no
representation or warranty made by Contributor contained in this Agreement
contains or will contain any untrue statement of a material fact or omits or
will omit to state any material fact necessary, in light of the circumstances
under which it was or will be made, in order to make the statements herein or
therein not misleading or necessary in order to fully and fairly provide the
information required to be provided in any such document, certificate, Schedule
or Exhibit.
(cc) As used throughout this Agreement, the phrases "to
Contributor's knowledge," "to the knowledge of Contributor," "to the best of
Contributor's knowledge" or any similar derivation thereof, shall mean the
actual (not constructive) knowledge of Xxxxxxxx Xxxxxxxx, Xxxxx Xxxxxxxx,
Xxxxxxx Xxxxxxx, Xxxxx Xxxxxxx, Xxxx Xxxxxx, Xxxx Xxxxxx, Xxxxx Xxxx and Xxxxx
Xxxxxx, without having undertaken any independent investigation of facts or
legal issues, without any duty to do so, and without imputing to the
aforementioned persons the knowledge of any employee, agent, representative or
affiliate of Contributor or of any other person or entity.
5.2 Intentionally Deleted.
5.3 All representations and warranties made hereunder by Contributor
and in this Agreement shall survive the Closing Date for a period of one (1)
year, except that the representations and warranties set forth in clauses (a),
(c), (w) and (z) of Section 5.1 shall survive such Closing Date for the
applicable period of the statute of limitations (unless otherwise specified
herein), and shall not be merged in the delivery of the Deed. Notwithstanding
the foregoing, to the extent that a Tenant shall certify in its Estoppel
Certificate (as defined below) as to any of the matters which are contained in
the representations and warranties made by Contributor in Section 5.1(f) of this
Agreement, then Contributor's representations and warranties as to such matters
shall be of no force or effect to the extent of any conflict. Pacifica Holding
Company, a Colorado corporation; and Pacifica Holding Company, a Colorado
limited liability company (collectively, "Guarantor"); and Contributor, jointly
and severally, shall, pursuant to a separate indemnity agreement (the "Indemnity
Agreement") in the form attached hereto as Schedule 5.3, indemnify and defend
Xxxx-Xxxx and MCRLP, and to hold Xxxx-Xxxx and MCRLP harmless, from and against
any and all claims, liabilities, losses, deficiencies and damages as well as
reasonable expenses (including attorney's, consulting and engineering fees), and
interest and penalties related thereto, incurred by Xxxx-Xxxx or MCRLP by reason
of or resulting from any breach, inaccuracy, incompleteness or non-fulfillment
of the representations, warranties, covenants and agreements of Contributor
contained in this Agreement to the full extent that Contributor would otherwise
have been liable therefor under the provisions of this Agreement. The foregoing
indemnity shall be deemed to be material to MCRLP and Xxxx-Xxxx'x obligation to
perform hereunder and shall survive the Closing. Notwithstanding the foregoing,
the members of Contributor shall have no liability for any loss resulting from
any breach of the foregoing representations and warranties. In addition, except
as set
36
forth in Section 28, MCRLP shall not have a right to bring a claim against
Contributor by virtue of any of the representations or warranties being false or
misleading unless and until the aggregate damages to MCRLP and/or Xxxx-Xxxx are
reasonably expected to exceed $100,000.00, but thereafter MCRLP and/or Xxxx-Xxxx
may bring a claim against Contributor for the entire amount of its aggregate
damages.
5.4 Contributor acknowledges that it is not in a significantly
disparate bargaining position with respect to MCRLP or Xxxx-Xxxx in connection
with the transaction contemplated by this Agreement and that Contributor was
represented by legal counsel in connection with this transaction.
5.5 Xxxx-Xxxx and MCRLP each acknowledges that it has had, or will
have had, as of the Closing, sufficient time to review all materials and
information set forth in Schedule 5.5, and sufficient time and access to review
and investigate the Property. Notwithstanding any other provision of this
Agreement, except as set forth in Subsections 5.1(d), (e) and (f), as they
relate to the Leases, the Estoppels and the Rent Rolls, the representations and
warranties of Contributor as set forth herein or in Contributor's Closing
Certificate are hereby modified to be made true to the extent that, as of the
date hereof with respect to the representations and warranties made herein, and
as of the Closing Date with respect to the representations and warranties made
by Contributor as of the Closing Date, (i) information contained in the records
made available as set forth in Schedule 5.5 no longer makes the subject
representation or warranty not true, whether or not either Xxxx-Xxxx or MCRLP
has actual knowledge of such information, or (ii) either Xxxx-Xxxx or MCRLP has
knowledge that the subject representation or warranty is untrue, or (iii)
Contributor has delivered or made available to any of the individuals described
in Section 6.1(l) other written information disclosing that the subject
representation or warranty is not true, whether or not either Xxxx-Xxxx or MCRLP
has actual knowledge of such information.
6. REPRESENTATIONS AND WARRANTIES OF XXXX-XXXX AND MCRLP.
6.1 In order to induce Contributor to perform as required hereunder,
Xxxx-Xxxx and MCRLP hereby jointly and severally warrant and represent the
following:
(a) (i) MCRLP is a duly organized and validly existing limited
partnership organized and in good standing under the laws of the State of
Delaware, has all requisite power and authority to execute and deliver this
Agreement and all other documents and instruments to be executed and delivered
by it hereunder, and to perform its obligations hereunder and under such other
documents and instruments in order to acquire the Property in accordance with
the terms and conditions hereof. All necessary actions of the partners of MCRLP
to confer such power and authority upon the persons executing this Agreement and
all documents which are contemplated by this Agreement on its behalf have been
taken.
(ii) Xxxx-Xxxx is a duly organized and validly existing
corporation organized and in good standing under the laws of the State of
Maryland, has all requisite power and authority to execute and deliver this
Agreement and all other documents and instruments to be executed and delivered
by it hereunder, and to perform its obligations hereunder and under such
37
other documents and instruments in order to permit MCRLP to acquire the Property
in accordance with the terms and conditions hereof. All necessary actions of the
board of directors of Xxxx-Xxxx to confer such power and authority upon the
persons executing this Agreement and all documents which are contemplated by
this Agreement on its behalf have been taken.
(b) This Agreement and the agreements and other documents to
be executed and delivered by each of Xxxx-Xxxx and MCRLP hereunder, when duly
executed and delivered, will be the legal, valid and binding obligation of each
of Xxxx-Xxxx and MCRLP, enforceable in accordance with the terms of this
Agreement. The performance by each of Xxxx-Xxxx and MCRLP of each of its duties
and obligations under this Agreement and the documents and instruments to be
executed and delivered by each of them hereunder will not conflict with, or
result in a breach of, or default under, any provision of any of the
organizational documents of each of Xxxx-Xxxx and MCRLP or any agreements,
instruments, decrees, judgments, injunctions, orders, writs, laws, rules or
regulations, or any determination or award of any court or arbitrator, to which
each of Xxxx-Xxxx and MCRLP is a party or by which each of its assets are or may
be bound.
(c) The Contributor Units to be issued to Contributor and/or
the Contributor Unit Holders are duly authorized and, when issued by MCRLP, will
be fully paid and non-assessable, free and clear of any mortgage, pledge, lien,
encumbrance, security interest, claim or rights of interest of any third party
of any nature whatsoever. The shares of Common Stock to be issued by Xxxx-Xxxx
upon redemption of the Contributor Units will be reserved for future listing
with the New York Stock Exchange prior to the date upon which any of the same
will be exercisable or redeemable for Common Stock, and, upon such issuance,
will be fully paid and non-assessable, free and clear of any mortgage, pledge,
lien, encumbrance, security interest, claim or rights of interest of any third
party of any nature whatsoever.
(d) MCRLP has furnished to Contributor a true and complete
copy of the OP Agreement, as amended to date.
(e) Xxxx-Xxxx has caused to be delivered to Contributor copies
of the OP Agreement. The SEC Documents were, and those additional documents
filed between the date hereof and the Closing will be, prepared and filed in
compliance with the rules and regulations promulgated by the SEC, and do not and
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein in order to make the statements
contained therein, in light of the circumstances under which they were made or
will be made, not misleading.
(f) The consolidated financial statements included in the SEC
Documents have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis during the period involved (except as
may be indicated in the notes thereto or, in the case of the unaudited
statements, as permitted by Form 10-Q) and present fairly (subject, in the case
of the unaudited statements, to normal, recurring year-end audit adjustments)
the consolidated financial position of Xxxx-Xxxx and its Subsidiaries at the
dates thereof and the consolidated results of operations and cash flows for the
periods then ended. For purposes of this Agreement, "Subsidiaries" shall mean
(i) any entity of which Xxxx-Xxxx (or other specified entity) shall own directly
or indirectly through a subsidiary, a nominee arrangement or otherwise (x) at
least a majority
38
of the outstanding capital stock (or other shares of beneficial interest), or
(y) at least a majority of the partnership, joint venture or similar interests;
and (ii) any entity in which Xxxx-Xxxx (or other specified entity) is a general
partner or joint partner, including without limitation MCRLP. "Subsidiaries"
shall specifically exclude Xxxx-Xxxx Services, Inc. and The Grove Street Urban
Renewal Corp., which are the only non-qualified REIT subsidiaries of Xxxx-Xxxx
as of the date hereof.
(g) No action, suit, claim, investigation or proceeding,
whether legal or administrative or in mediation or arbitration, is pending or,
to the best of each of Xxxx-Xxxx'x and MCRLP's knowledge, threatened, at law or
in equity, against either of Xxxx-Xxxx or MCRLP before or by any court or
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality which would prevent either of Xxxx-Xxxx or
MCRLP from performing its respective obligations pursuant to this Agreement.
(h) The execution and delivery of this Agreement and the
performance by each of Xxxx-Xxxx and MCRLP of its respective obligations
hereunder do not and will not conflict with or violate any law, rule, judgment,
regulation, order, writ, injunction or decree of any court or governmental or
quasi-governmental entity with jurisdiction over Xxxx-Xxxx or MCRLP, including
without limitation, the United States of America, the States of New York and New
Jersey or any political subdivision of any of the foregoing, or any decision or
ruling of any arbitrator to which Xxxx-Xxxx or MCRLP is a party or by which
Xxxx-Xxxx or MCRLP is bound or affected.
(i) (1) Xxxx-Xxxx (A) intends to file its federal income tax
return for the tax year that will end on December 31, 1997, as a real estate
investment trust ("REIT") within the meaning of Section 856 of the Internal
Revenue Code of 1986, as amended (the "Code"), (B) has complied with all
applicable provisions of the Code which would have enabled it to qualify as a
REIT for 1995 and 1996, (C) has operated, and intends to continue to operate, in
such a manner so as to enable it to qualify as a REIT for 1998 and subsequent
years, and (D) has not taken or omitted to take any action which would
reasonably be expected to cause its disqualification as a REIT, and no challenge
to its REIT status is pending or, to Xxxx-Xxxx'x knowledge, threatened.
(2) Xxxx-Xxxx has timely filed with the appropriate
Governmental Authority all Tax Returns required to be filed by it or has timely
requested extensions and any such request has been granted and has not expired.
Each such Tax Return is true and correct in all material respects. All Taxes
shown as owed by Xxxx-Xxxx or any of its Subsidiaries on any Tax Return have
been paid or accrued, except for Taxes being contested in good faith and for
which adequate reserves have been established. None of Xxxx-Xxxx or any of its
Subsidiaries has executed or filed with the Internal Revenue Service or any
other taxing authority any agreement now in effect extending the period for
assessment or collection of any Tax.
(3) To its knowledge, as of the date hereof, Xxxx-Xxxx
is a "domestically-controlled" REIT within the meaning of Section 897(h)(4)(B)
of the Code.
(j) All of Xxxx-Xxxx'x real property and other material assets
are owned by Xxxx-Xxxx indirectly through its ownership of MCRLP and MCRLP's
Subsidiaries.
39
(k) Neither Xxxx-Xxxx nor MCRLP has made a general assignment
for the benefit of creditors, filed any voluntary petition in bankruptcy or
suffered the filing of any involuntary petition by either of Xxxx-Xxxx'x or
MCRLP's creditors, suffered the appointment of a receiver to take possession of
all, or substantially all, of Xxxx-Xxxx'x or MCRLP's assets, suffered the
attachment or other judicial seizure of all, or substantially all, of
Xxxx-Xxxx'x or MCRLP's assets, admitted in writing its inability to pay its
debts as they come due or made an offer of settlement, extension or composition
to its creditors generally.
(l) As used throughout this Agreement, the phrases "to
Xxxx-Xxxx'x knowledge," "to the knowledge of Xxxx-Xxxx", "to the best of
Xxxx-Xxxx'x knowledge", to MCRLP's knowledge," "to the knowledge of MCRLP", "to
the best of MCRLP's knowledge" or any similar derivations thereof, shall mean
the actual (not constructive) knowledge of Xxx Xxxxx, Xxxx XxXxxx, Xxxxxx
Xxxxxx, Xxxxxx Xxxxxxxxx, Xxxxx X. Xxxxxx and Xxxxx Xxxxx, without having
undertaken any independent investigation of facts or legal issues, without
having any duty to do so, and without imputing to the aforementioned persons the
knowledge of any employee, agent, representative or affiliate of Xxxx-Xxxx,
MCRLP or of any other person or entity.
6.2 Each of Xxxx-Xxxx and MCRLP acknowledges that it is not in a
significantly disparate bargaining position with respect to Contributor in
connection with the transaction contemplated by this Agreement and that
Xxxx-Xxxx and MCRLP were represented by legal counsel in connection with this
transaction.
6.3 All representations and warranties made by Xxxx-Xxxx and MCRLP
in this Agreement shall survive the Closing Date for a period of eighteen (18)
months, except that the representations and warranties set forth in clauses (a)
and (b) of Section 6.1 shall survive such Closing Date for the applicable period
of the statute of limitations (unless otherwise specified herein), and shall not
be merged in the delivery of the Deed. Xxxx-Xxxx and MCRLP agree to indemnify
and defend Contributor, and to hold Contributor harmless, from and against any
and all claims, liabilities, losses, deficiencies and damages as well as
reasonable expenses (including attorney's, consulting and engineering fees), and
interest and penalties related thereto, incurred by Contributor by reason of or
resulting from any breach, inaccuracy, incompleteness or non-fulfillment of the
representations, warranties, covenants and agreements of Xxxx-Xxxx and MCRLP
contained in this Agreement. Notwithstanding the foregoing, the partners of
MCRLP and the shareholders of Xxxx-Xxxx shall have no liability for any loss
resulting from any breach of the foregoing representations and warranties. In
addition, Contributor shall not have a right to bring a claim against Xxxx-Xxxx
or MCRLP by virtue of any of the representations or warranties being false or
misleading unless and until the aggregate damages to Contributor is reasonably
expected to exceed $100,000.00, but thereafter Contributor may bring a claim
against Xxxx-Xxxx or MCRLP for the entire amount of its aggregate damages.
40
INTERIM OPERATING COVENANTS OF CONTRIBUTOR.
7.1 Contributor covenants and agrees that between the date hereof
and the Closing Date (the "Interim Period"), it shall perform or observe the
following with respect to the Real Property:
(a) Contributor will complete any capital expenditure program
currently in process or anticipated to be completed. Contributor will not defer
taking any actions or spending any of its funds, or otherwise manage the Real
Property differently, due to the transaction contemplated by this Agreement.
(b) Contributor, as landlord, will not enter into any new
leases with respect to the Property, or renew or modify any Lease, without
MCRLP's prior written consent; provided, however that Contributor shall be
permitted to enter into new leases, renewals or modifications upon prior notice
to, but without the prior written consent of MCRLP, so long as such lease,
renewal or modification is on market terms and conditions with bona fide third
parties and is the type of transaction which Contributor currently enters into
in the ordinary course of its business.
(c) Contributor shall comply with and/or remedy all violations
of statutes, ordinances, rules, regulations, orders, codes, directives or
requirements affecting the Real Property, whether or not such violations are now
noted in the records of or have been issued by any Governmental Authorities
prior to the Closing, and the Real Property shall be conveyed free of any such
violations, including, without limitation, violations of Environmental Laws.
(d) Contributor shall not:
(i) Enter into any agreement requiring Contributor to do
work for any Tenant after the Closing Date without first obtaining the prior
written consent of MCRLP, unless such agreement is on market terms and
conditions with bona fide third parties and is the type of agreement which
Contributor currently enters into in the ordinary course of its business, in
which case no consent of MCRLP will be required; or
(ii) Accept the surrender of any Service Contract or
Lease, or grant any concession, rebate, allowance or free rent, except in its
ordinary course of business on market terms, with bona fide third parties and
upon prior written notice to MCRLP.
(iii) Intentionally Deleted.
(e) Contributor shall not, between the date hereof and the
Closing Date, apply any Security Deposits with respect to any Tenant in
occupancy on the Closing Date, except in its ordinary course of business.
Contributor shall provide MCRLP with an updated schedule of Security Deposits at
the Closing or the Earnout Closing.
(f) Between the date hereof and the Closing Date, Contributor
will not renew, extend or modify any of the Service Contracts without the prior
written consent of MCRLP
41
unless such is done by Contributor in the ordinary course of its business and
such Service Contracts contain a right to terminate on thirty (30) days' notice
with no material cost to exercise such right, in which case no consent of MCRLP
will be required.
(g) Contributor shall not remove or permit the removal of any
Personal Property located in or on the Property, except as may be required for
repair and replacement. All replacements shall be free and clear of liens and
encumbrances except to the extent the original Personal Property was so
encumbered and shall be of quality at least equal to the replaced items and
shall be deemed included in this sale, without cost or expense to MCRLP, other
than expressly provided herein.
(h) Contributor shall, upon request of MCRLP at any time after
the date hereof, assist MCRLP in its preparation of audited financial
statements, statements of income and expense, and such other documentation as
MCRLP may reasonably request, covering the period of Contributor's ownership of
the Real Property.
(i) Between the date hereof and the Closing Date, Contributor
will make all required payments under any mortgage affecting the Real Property
within any applicable grace period, but without reimbursement by MCRLP therefor.
Contributor shall also comply with all other material terms covenants and
conditions of any mortgage on the Real Property.
(j) Contributor shall not cause or permit the Real Property,
or any interest therein, to be alienated, mortgaged, licensed, encumbered or
otherwise be transferred.
(k) Contributor agrees to maintain and keep in full force and
effect the hazard, liability and casualty insurance policies it is currently
maintaining, which policies Contributor represents are sufficient to protect, to
a reasonable and prudent extent, the owner of the Property, in such amounts as
are required so as not to be deemed a co-insurer, and for actual replacement
cost, against any loss, damage, claim or liability.
(l) Contributor shall permit MCRLP and its authorized
representatives to inspect the Books and Records of its operations at all
reasonable times upon reasonable notice. All Books and Records not conveyed to
MCRLP hereunder shall be maintained for MCRLP's inspection at Contributor's
address as set forth in Exhibit A hereto.
(m) Contributor shall:
(i) promptly notify MCRLP of, and promptly deliver to
MCRLP, a certified true and complete copy of any notice Contributor may receive,
on or before the Closing Date from any Governmental Authority concerning a
violation of Environmental Laws or Discharge of Contaminants;
(ii) contemporaneously with the signing and delivery of
this Agreement, and subsequently promptly upon receipt by Contributor or its
representatives, deliver to MCRLP a certified true and complete copy of all
Environmental Documents; and
42
(iii) timely provide MCRLP with drafts of any pertinent
documentation in connection with leasing matters, Service Contracts and
agreements for work to be done on behalf of Tenants and shall keep MCRLP
informed of all substantive negotiations and discussions with respect to the
foregoing matters on an on-going basis.
7.2 Prior to the Closing, Contributor shall deliver to MCRLP
reviewed Property Financials as set forth in Section 5.1(v). Within thirty (30)
days after the Closing Date, Contributor shall deliver to MCRLP Property
Financials, as set forth in Section 5.1(v), through the Closing Date.
The provisions of this Section 7.2 shall survive the Closing Date.
7.3 Intentionally Deleted.
7.4 Intentionally Deleted.
7.5 Contributor and its affiliated entities will timely pay all
Taxes due and payable during the Interim Period in connection with the ownership
and/or operation of the Property (by them or any predecessor entities) or their
businesses, for which MCRLP (or any of its direct or indirect partners) could be
held directly or indirectly liable or a claim could be made against the
Property. Contributor and its affiliated entities will timely file all Tax
Returns required to be filed during the Interim Period in connection with the
ownership and/or operation of the Property (by them or any predecessor entities)
or their businesses, the non-timely filing (or non-filing) of which could result
in direct or indirect liability to MCRLP (or any of its direct or indirect
partners) or a claim against the Property. Each such Tax Return will be complete
and accurate in all respects and will be filed on a basis consistent with past
practice. A copy of all such Tax Returns shall be delivered to Xxxx-Xxxx at
least three (3) days prior to such Tax Returns being filed. The obligations set
forth in this Section 7.5 shall survive the expiration or earlier termination of
this Agreement and/or shall survive the Closing Date for the applicable period
of the statute of limitations.
8. INTENTIONALLY DELETED.
9. ESTOPPEL CERTIFICATES.
9.1 Contributor agrees to deliver to each Tenant, no later than the
date hereof, an estoppel certificate in the form annexed hereto as Exhibit 9.1
for Tenant's execution, completed to reflect Tenant's particular Lease status.
Contributor agrees to use commercially reasonable efforts to obtain from all
Tenants the estoppel certificates in such form; provided, however, that if any
Tenant shall refuse to execute an estoppel letter in such form, Contributor
shall nevertheless use commercially reasonable efforts to obtain estoppel
certificates in the form in which each Tenant is obligated to deliver the same
as provided in its Lease. Contributor agrees to deliver to MCRLP copies of all
estoppel letters received by Tenants, in the form received by Contributor. The
estoppel certificates required to be obtained pursuant to this Section 9.1 are
collectively referred to as the "Estoppel Certificates".
43
9.2 As a condition to the Closing, Contributor shall deliver (a) an
Estoppel Certificate from all Tenants which lease space at the Real Property in
excess of 10,000 square feet or more in the aggregate, and (b) Estoppel
Certificates from the remaining Tenants leasing at least seventy-five (75%)
percent of the square footage of the Real Property including the Tenants set
forth in Clause 9.2(a) above.
9.3 For an Estoppel Certificate to be deemed delivered for purposes
of this Agreement, it must certify that Tenant's most recent rental payment
under its Lease was made not more than one (1) month prior to the month in which
the Closing occurs.
10. CLOSINGS.
10.1 (a) Closing. The consummation of the transactions contemplated
hereunder with respect to the Property (the "Closing") shall take place at the
offices of Brownstein, Hyatt, Xxxxxx & Xxxxxxxxxx, P.C., 000 Xxxxxxxxxxx Xxxxxx,
00xx Xxxxx, Xxxxxx, Xxxxxxxx, 00000-0000, on or about March 25, 1998 (the
"Closing Date"). Upon notice to Contributor, MCRLP may elect to accelerate the
Closing Date to a date not less than five (5) days after the date of MCRLP's
notice.
(b) Intentionally Deleted.
(c) Intentionally Deleted.
(d) Intentionally Deleted.
10.2 On the Closing Date, except as otherwise set forth in
Subsections 10.2(z) and 10.2(aa), Contributor, at its sole cost and expense,
will deliver or cause to be delivered to MCRLP the following documents, fully
executed by all parties thereto other than MCRLP or parties claiming by, through
or under MCRLP:
(a) Special Warranty Deeds (the "Deeds") with covenants in
proper statutory form for recording so as to convey to MCRLP good and marketable
title to the Land being conveyed, free and clear of all liens and encumbrances,
except the Permitted Encumbrances. The delivery of the Deeds shall also be
deemed to constitute a transfer of the Personal Property associated with the
Land conveyed by the Deeds; the delivery of all of the Deeds shall be deemed to
constitute a transfer of the balance of the Personal Property to MCRLP.
(b) All original Leases and all other documents pertaining
thereto, and certified copies of such Leases or other documents where
Contributor, using its best efforts, is unable to deliver originals of the same.
(c) All other original documents or instruments referred to
herein, including without limitation the Service Contracts, Licenses and Permits
and Books and Records, and certified copies of the same where Contributor, using
its best efforts, is unable to deliver originals of the same.
44
(d) A letter to Tenants advising the Tenants of the sale
hereunder and directing that rent and other payments thereafter be sent to MCRLP
or its designee, as MCRLP shall so direct.
(e) Intentionally Deleted.
(f) Duly executed and acknowledged omnibus assignment in the
form of Exhibit 10.2(f) annexed hereto ("Omnibus Assignment").
(g) Duly executed Asset Purchase Agreement in the form of
Exhibit 10.2(g) annexed hereto.
(h) An affidavit, and such other document or instruments
required by the Title Company, executed by Contributor certifying (i) against
any work done or supplies delivered to the Real Property which might be grounds
for a materialman's or mechanic's lien under or pursuant to Colorado Lien Law,
in form sufficient to enable the Title Company to affirmatively insure MCRLP
against any such lien, (ii) that the signatures on the Deeds are sufficient to
bind Contributor and convey the Property to MCRLP, and (iii) the Rent Roll.
(i) Affidavits and other instruments, including but not
limited to all organizational documents of Contributor and Contributor's general
partners, as applicable, including operating agreements, filed copies of limited
liability certificates, articles of organization, and good standing
certificates, reasonably requested by MCRLP and the Title Company evidencing the
power and authority of Contributor to enter into this Agreement and any
documents to be delivered hereunder, and the enforceability of the same.
(j) The original Estoppel Certificates.
(k) A list of all cash security deposits and all non-cash
security deposits (including letters of credit) delivered by Tenants under the
Leases, together with other instruments of assignment, transfer or consent as
may be necessary to permit MCRLP to realize upon the same.
(l) A certificate indicating that the representations and
warranties of Contributor made in this Agreement are true and correct as of the
Closing Date or if there have been any changes, a description thereof.
(m) A Rent Roll for each Real Property, current as of the
Closing Date, certified by Contributor as being true and correct in all material
respects.
(n) All proper instruments as shall be reasonably required for
the conveyance to MCRLP of all right, title and interest, if any, of Contributor
in and to any award or payment made, or to be made, (i) for any taking in
condemnation, eminent domain or agreement in lieu thereof of land adjoining all
or any part of the Improvements, (ii) for damage to the Land, or Improvements or
any part thereof by reason of change of grade or closing of any such street,
road,
00
xxxxxxx xx xxxxxx, and (iii) for any taking in condemnation or eminent domain of
any part of the Land and Improvements.
(o) In order to avoid the imposition of the withholding tax
payment pursuant to Section 1445 of the Code, a certificate which is in a form
acceptable to Xxxx-Xxxx and which is signed by the appropriate officer of
Contributor, to the effect that Contributor is not a "foreign person" as that
term is defined in Section 1445(f)(3) of the Code.
(p) All such transfer and other tax declarations and returns
and information returns, duly executed and sworn to by Contributor as may be
required of Contributor by law in connection with the conveyance of the Property
to MCRLP, including but not limited to, Internal Revenue Service forms and the
declaration required to be filed pursuant to Title 39, Article 14 of the
Colorado Revised Statutes.
(q) A statement setting forth all adjustments and prorations
shown thereon.
(r) Tradenames Assignment Agreement substantially in the form
of Exhibit 10.2(r) attached hereto.
(s) Estoppel certificate addressed to MCRLP from the
mortgagees of the Mortgages in form and substance reasonably acceptable to
MCRLP.
(t) An opinion of counsel from Brownstein, Hyatt, Xxxxxx &
Xxxxxxxxxx, P.C., substantially in the form of Exhibit 10.2(t) regarding the due
execution, delivery and enforceability of this Agreement and the foregoing
documents.
(u) Intentionally Deleted.
(v) Duly executed and acknowledged Indemnity Agreement from
Guarantor and Contributor as set forth in Section 5.3.
(w) Intentionally Deleted.
(x) Intentionally Deleted.
(y) Such other documents as may be reasonably required by
MCRLP or as may be appropriate to effectuate the consummation of the
transactions contemplated by this Agreement.
(z) At least fifteen (15) days prior to the Closing Date, a
schedule setting forth, with respect to each item of the Property for which
Contributor Units will be received as part of the consideration: (i) those
Contributors of such item of the Property that are allocated Contributor Units
and the amount of Contributor Units so allocated to any such Contributor; (ii)
the gross fair market value of such item of the Property for purposes of
determining the gain or loss that will be
46
recognized for federal income tax purposes as a result of the contribution;
(iii) the adjusted basis of such item of the Property immediately prior to the
contribution; (iv) the amount of cash and Contributor Units allocated to the
item of the Property; and (v) the amount of any liability relating to such item
of the Property that MCRLP will either assume or to which such item will be
subject and which does not constitute a "qualified liability" within the meaning
of Treasury Regulations Section 1.707-5(a)(6).
(aa) At least fifteen (15) days prior to the Closing Date, a
schedule setting forth: (i) any Contributor named for purposes of Section
10.2(z)(i) which is to receive less than the full amount of Contributor Units
indicated for purposes of Section 10.2(z)(i); and (ii) the names of those
persons who are to receive Contributor Units that each such Contributor would
otherwise be entitled to receive and the amount of units that any such persons
are to receive. At least fifteen (15) days prior to the Closing Date, each
Contributor to which this Section 10.2(aa) is relevant shall issue "direction
letters" to MCRLP (in the form acceptable to MCRLP), to the effect that each
such Contributor authorizes the issuance by MCRLP of Contributor Units directly
to such persons (and in such amounts) which are set forth for purposes of
Section 10.2(aa)(ii).
(bb) A letter from each applicable municipal department or
agency having jurisdiction that the Property is in compliance with the laws,
codes, rules, regulations and ordinances regarding (i) zoning, (ii) building,
(iii) health and (iv) fire, life and safety.
(cc) A computer diskette containing any closing or other
documents executed in connection with this transaction and prepared by
Contributor or its counsel, in WordPerfect or Microsoft Word format.
(dd) All original organizational documents relating to the
Contributor, and all statements of accounts, books and records and insurance
policies.
(ee) a certificate executed by each Contributor Unit Holder
and each Contributor receiving Contributor Units, substantially in the form of
Exhibit 10.2(ee).
10.3 On the Closing Date, Xxxx-Xxxx and MCRLP, at their sole cost
and expense, will deliver or cause to be delivered to Contributor the following
documents, fully executed by all parties thereto other than Contributor or
parties claiming by, through or under Contributor:
(a) The Cash Payment, net of adjustments and prorations.
(b) The Permanent Certificates representing, in the aggregate,
the Contributor Units.
(c) Intentionally Deleted.
(d) Duly executed and acknowledged Omnibus Assignment in the
form of Exhibit 10.2(f) annexed hereto.
47
(e) A certificate indicating that the representations and
warranties of Xxxx-Xxxx and MCRLP made in this Agreement are true and correct as
of the Closing Date or if there have been any changes, a description thereof.
(f) Affidavits and other instruments, including but not
limited to all organizational documents of Xxxx-Xxxx and MCRLP including limited
partnership agreements, filed copies of limited partnership certificates,
articles of organization, and good standing certificates, reasonably requested
by Contributor evidencing the power and authority of Xxxx-Xxxx and MCRLP to
enter into this Agreement and any documents to be delivered hereunder, and the
enforceability of the same.
(g) A Registration Rights Agreement substantially in the form
of Exhibit 10.3(g).
(h) Amendment to OP Agreement substantially in the form of
Exhibit 10.3(h) reflecting admission of the Contributor Unit Holders as limited
partners.
(i) Tradenames Assignment Agreement substantially in the form
of Exhibit 10.2(r).
(j) Intentionally Deleted.
(k) Such other documents as may be reasonably required or
appropriate to effectuate the consummation of the transactions contemplated by
this Agreement.
10.4 Contributor shall pay for the premium charges and costs for
title insurance policies (but not any endorsements to such policies required by
Xxxx-Xxxx); all survey costs; all costs incurred to repay or satisfy any and all
liens; all administrative and legal costs associated with the assumption by
MCRLP of the mortgages to which this transaction is subject (other than the fees
or charges payable in connection with the mortgages being paid-off by Xxxx-Xxxx
as herein provided); all leasing commissions due to Tenants in connection with
the initial terms of their respective Leases; all costs of tenant improvement
concessions due to Tenants in connection with the initial terms of their
respective Leases; and all customary prorations and apportionments. Xxxx-Xxxx
shall pay for the costs of all customary documentary and recording fees;
(including, without limitation, the "documentary fee" imposed by Article 13 of
the Colorado Revised Statutes); the cost of any endorsements to its title
insurance policies; all due diligence investigations costs (including, without
limitation, the cost of all Phase I Reports for the Property, which
environmental assessment reports shall be dated no more than thirty (30) days
prior to the Closing Date); any fees or charges payable in connection with the
mortgages being paid-off by Xxxx-Xxxx as herein provided and all customary
prorations and apportionments. Each party shall be responsible for its own
attorney's fees. The provisions of this Section 10.4 shall survive the Closing.
10.5 The Closing shall be consummated without compliance with bulk
sales laws. If by reason of any applicable bulk sales law, any claims are
asserted by creditors of Contributor
48
related to periods prior to the Closing, such claims shall be the responsibility
of Contributor, and Contributor shall jointly and severally indemnify, defend
and hold harmless MCRLP (and its respective directors, officers, employees,
affiliates, successors and assigns) from and against all losses or liabilities,
if any, based upon, arising out of or otherwise in respect of the failure to
comply with such bulk sales laws.
10.6 Xxxx-Xxxx and MCRLP acknowledge and agree that, except as set
forth in this Agreement, MCRLP is acquiring the Property in its "as is"
condition "subject to all faults" and specifically and expressly without any
warranties, representations or guarantees, either express or implied, of any
kind, nature, or type whatsoever from or on behalf of Contributor. Xxxx-Xxxx and
MCRLP acknowledge that, except as set forth in this Agreement, and except for
documents, reports and information related to the environmental integrity of the
Real Property, neither Xxxx-Xxxx nor MCRLP has relied and is not relying on any
information, document, reports, sales brochure or other literature, maps or
sketches, financial information, projections, pro formas or statements, that may
have been given by or made by or on behalf of Contributor with respect to the
Property. MCRLP and Xxxx-Xxxx further acknowledge that all materials relating to
the Property which have been provided by Contributor, including but not limited
to, the Phase I Reports, have been provided without any warranty or
representation, expressed or implied as to their content, suitability for any
purpose, accuracy, truthfulness or completeness and, except as expressly
provided herein, neither MCRLP nor Xxxx-Xxxx shall have any recourse against
Contributor or its counsel, advisors, agents, officers, directors or employees
for any information in the event of any errors therein or omissions therefrom.
Contributor does not warrant or make any representation, express or
implied, as to the merchantability, quantity, quality, condition, suitability or
fitness of the Property for any purpose whatsoever, including, without
limitation, its compliance with applicable building codes and ordinances, zoning
laws, environmental laws including, without limitation, the Clean Air Act,
CERCLA and the Super Fund Amendments and Reauthorization Act (XXXX), the
Americans with Disabilities Act, and any other federal, state or local statutes,
codes or ordinances. MCRLP also acknowledges and agrees that (i) the
Contributor's representations and warranties set forth in Section 5 and (ii) the
provisions in this Agreement for delivery of existing Phase I Reports and
inspection and investigation of the Property are adequate to enable MCRLP to
make MCRLP's own determination with respect to the suitability or fitness of the
Property, including, without limitation, its compliance with applicable building
codes and ordinances, zoning laws, environmental laws including, without
limitation, the Clean Air Act, CERCLA and the XXXX, the Americans with
Disabilities Act, and any other federal, state or local statutes, codes or
ordinances.
Except to the extent (a) caused by a breach of any of Contributors'
representations hereunder; (b) related to claims by or liabilities to third
parties unrelated to Xxxx-Xxxx or MCRLP; or (c) as otherwise expressly set forth
herein, including, without limitation, as indemnified pursuant to the Indemnity
Agreement, MCRLP and Xxxx-Xxxx, for themselves and their successors and assigns,
hereby release each of the Contributors, and their agents, employees, partners,
officers, directors, members, managers, contractors, consultants and
representatives from, and waive any and all causes of action or claims against
any of such persons for (i) any and all liability attributable to any physical
condition of or at the Property, including, without limitation, the presence on,
under
49
or about the Property of any materials the release or storage of which is
regulated by law; (ii) any and all liability resulting from the failure of the
Property to comply with any applicable laws; and (iii) any liabilities, damages
or injury arising from, connected with or otherwise caused by statements,
opinions or information obtained from any of such persons with respect to the
Property.
ADJUSTMENTS.
11.1 The following items under (a) through (g) with respect to the
Real Property are to be apportioned as of midnight on the date preceding the
Closing:
(a) Rents, escalation charges and percentage rents payable by
Tenants as and when collected. All moneys received from Tenants from and after
the Closing shall belong to MCRLP and shall be applied by MCRLP to current rents
and other charges under the Leases. After application of such moneys to current
rents and charges, MCRLP agrees to remit to Contributor any excess amounts paid
by a Tenant to the extent that such Tenant was in arrears in the payment of rent
prior to the Closing.
(b) A cashier's or certified check or wire transfer to the
order of MCRLP in the amount of all cash Security Deposits and any prepaid
rents, together with interest required to be paid thereon. At the election of
MCRLP, such amount may be allotted to MCRLP as a credit against the Cash
Payment.
(c) Utility charges payable by Contributor, including without
limitation, electricity, water charges and sewer charges. If there are meters on
the Real Property, Contributor will cause readings of all said meters to be
performed not more than ten (10) days prior to the Closing Date.
(d) Amounts payable under the Service Contracts other than
those Service Contracts which MCRLP has elected not to assume.
(e) Real estate taxes due and payable for the calendar year.
If the Closing Date shall occur before the tax rate is fixed, the apportionment
of real estate taxes shall be upon the basis of the tax rate for the preceding
year applied to the latest assessed valuation.
(f) The value of fuel stored at any of the Real Property, at
Contributor's most recent cost, including taxes, on the basis of a reading made
within fifteen (15) days prior to the Closing by Contributor's supplier.
(g) Intentionally Deleted.
11.2 Intentionally Deleted.
11.3 At the Closing, Contributor shall deliver to MCRLP a list of
additional rent, however characterized, under all Leases, including without
limitation, real estate taxes, electrical
50
charges, utility costs and operating expenses (collectively, "Additional Rents")
billed to Tenants for the calendar year 1997 (both on a monthly basis and in the
aggregate), the basis for which the monthly amounts are being billed and the
amounts incurred by Contributor on account of the components of Additional Rent
for calendar year 1997. Upon the reconciliation by MCRLP of the Additional Rents
billed to Tenants, and the amounts actually incurred for calendar year 1997,
Contributor and MCRLP shall be liable for overpayments of Additional Rents, and
shall be entitled to payments from Tenants, as the case may be, on a pro rata
basis based upon each party's period of ownership during calendar year 1997.
Notwithstanding the foregoing, the calculation of real estate taxes and the
collection of Additional Rents from Tenants attributable to such real estate
taxes, as reflected on the closing statement related hereto, shall be final as
of the Closing Date.
11.4 All amounts due and owing under the Mortgages other than the
outstanding principal balance thereof, including by way of example accrued and
unpaid interest, deferred interest, late charges, default interest, prepayment
fees or penalties, and other fees and charges, shall be paid by Contributor on
or before the Closing.
11.5 If, on the Closing Date, the Property or any part thereof shall
be or shall have been affected by an assessment or assessments which are or may
become payable in annual installments, all the unpaid installments of any such
assessment due and payable on or prior to the Closing Date shall be paid and
discharged by Contributor on the Closing Date.
11.6 Except as otherwise provided in this Agreement, the adjustments
shall be made in accordance with the customs in respect to title closings in the
State of Colorado.
11.7 Any errors in calculations or adjustments shall be corrected or
adjusted as soon as practicable after the Closing.
11.8 The provisions of this Section 11 shall survive the Closing
Date.
12. CONDITIONS PRECEDENT TO CLOSING.
12.1 The obligations of Contributor to deliver title to the Real
Property and to perform the other covenants and obligations to be performed by
Contributor on the Closing Date shall be subject to the following conditions
(all or any of which may be waived, in whole or in part, by Contributor):
(a) The representations and warranties made by MCRLP and
Xxxx-Xxxx herein shall be true and correct in all material respects with the
same force and effect as though such representations and warranties had been
made on and as of the Closing Date; provided, however, that a failure of any
representations or warranties to be true and correct in all material respects
shall not give rise to a claim by Contributor hereunder so long as such matters
do not have a material adverse effect on the transactions contemplated herein.
(b) MCRLP and Xxxx-Xxxx shall have executed and delivered to
Contributor all of the documents provided herein for said delivery.
51
(c) Intentionally Deleted.
(d) Xxxx-Xxxx and MCRLP shall have performed all covenants and
obligations undertaken by Xxxx-Xxxx and MCRLP herein in all material respects
and complied with all material conditions required by this Agreement to be
performed or complied with by them on or before the Closing Date.
12.2 The obligations of Xxxx-Xxxx and MCRLP to accept title to the
Property and Xxxx-Xxxx'x and MCRLP's obligation to perform the other covenants
and obligations to be performed by Xxxx-Xxxx and MCRLP on the Closing Date shall
be subject to the following conditions (all or any of which may be waived, in
whole or in part, by Xxxx-Xxxx or MCRLP):
(a) Subject to Section 5.5(a) the representations and
warranties made by Contributor herein shall be true and correct in all material
respects with the same force and effect as though such representations and
warranties had been made on and as of the Closing Date. For the purposes of the
Closing condition described in this Section 12.2(a), any limitation to the
knowledge, best knowledge, or actual knowledge in any representation, warranty,
covenant or agreement made by Contributor herein shall be inapplicable.
(b) Contributor shall have performed all covenants and
obligations undertaken by Contributor herein in all respects and complied with
all conditions required by this Agreement to be performed or complied with by it
on or before the Closing Date.
(c) The Title Company is unconditionally prepared to issue to
MCRLP a Title Policy meeting the requirements set forth in Section 4 hereof for
an "insurable title".
(d) The Real Property shall be in compliance with all
Environmental Laws.
13. INTENTIONALLY DELETED.
LEASING COMMISSIONS AND TENANT IMPROVEMENT
OBLIGATIONS.
All leasing commissions due on account of the original term of all
Leases made before the date of this Agreement and extensions and renewals which
are presently effective (but not renewals or extensions of such leases which are
exercised after the Closing Date) shall be paid by Contributor. MCRLP shall be
credited at Closing as set forth on Schedules 5.1(f) and 5.1(m) respectively
with respect to certain tenant improvement and leasing commission obligations,
but Contributors shall remain liable for any amounts due and owing in excess of
such credits. All leasing commissions on account of extensions or renewals of
Leases made after the Closing Date shall be paid by MCRLP. All tenant
improvements obligations shall be satisfied prior to the Closing Date. The
provisions of this Section shall survive the Closing.
52
15. ASSIGNMENT.
This Agreement may not be assigned by Xxxx-Xxxx or MCRLP except to a
directly or indirectly wholly-owned subsidiary or subsidiaries of Xxxx-Xxxx or
MCRLP, or to a partnership in which any such wholly-owned subsidiary or
subsidiaries owns, either directly or indirectly, at least seventy-five (75%)
percent of the profits, losses and cash flow thereof and controls the management
of the affairs of such partnership (any such entity, a "Permitted Assignee") and
any other assignment or attempted assignment by Xxxx-Xxxx or MCRLP shall be
deemed null and void and of no force and effect. Notwithstanding anything to the
contrary contained herein, Xxxx-Xxxx or MCRLP may assign the right to purchase
individual portions of the Property to various entities, provided that each of
such entities is a Permitted Assignee. A copy of any assignment permitted
hereunder, together with an agreement of the assignee assuming all of the terms
and conditions of this Agreement to be performed by Xxxx-Xxxx or MCRLP with
respect to the portion of the Real Property, in form reasonably satisfactory to
counsel for Contributor, shall be delivered to the attorneys for Contributor
prior to the Closing, and in any event, no such assignment shall relieve
Xxxx-Xxxx and MCRLP from their obligations under this Agreement.
16. BROKER.
Xxxx-Xxxx, MCRLP, and Contributor represent that, with the exception
of Sonnenblick Xxxxxxx Ltd. and Pacifica Holding Company LLC (collectively,
"Brokers") they have not dealt with any brokers, finders or salesmen, in
connection with this transaction, and agree to indemnify, defend and hold each
other harmless from and against any and all loss, cost, damage, liability or
expense, including reasonable attorneys' fees, which they may sustain, incur or
be exposed to by reason of any breach of the foregoing representation and
warranty. Notwithstanding the foregoing, Contributor shall pay in full any
commission, fee or other compensation due the Brokers pursuant to separate
agreements, and Guarantor and Contributor agree to indemnify, defend and hold
MCRLP and Xxxx-Xxxx harmless from and against any and all loss, cost, damage,
liability, or expense, including reasonable attorneys' fees, which MCRLP or
Xxxx-Xxxx may sustain, incur or be exposed to by reason of Contributor's failure
to pay in full the Brokers pursuant to such separate agreements. The provisions
of this Section shall survive the Closing and/or other termination of this
Agreement.
17. CASUALTY LOSS.
17.1 Contributor shall continue to maintain, in all material
respects, the fire and extended coverage insurance policies with respect to the
Property (the "Insurance Policies") which are currently in effect, through the
date that said coverage currently expires, which obligation shall survive the
Closing.
17.2 If at any time prior to the Closing Date, all or any portion of
the Property is destroyed or damaged as a result of fire or any other casualty
(a "Casualty"), Contributor shall
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promptly give written notice ("Casualty Notice") thereof to MCRLP. Within ten
(10) days after the receipt of the Casualty Notice, MCRLP and Xxxx-Xxxx shall
have the right, at its sole option, to terminate this Agreement with respect to
said Property by written notice to Contributor. Notwithstanding the foregoing,
MCRLP and Xxxx-Xxxx shall not have the right to terminate this Agreement if (a)
Contributor's insurance fully covers the damage resulting from the Casualty; and
(b) the proceeds of any insurance, together with a credit equal to Contributor's
deductible under the Insurance Policies, shall be paid to MCRLP and Xxxx-Xxxx at
the time of the Closing; and (c) all unpaid claims and rights in connection with
losses to the Property shall be assigned to MCRLP and Xxxx-Xxxx at the Closing
without in any manner affecting the Exchange Consideration hereunder.
17.3 If the Property is the subject of a Casualty but MCRLP or
Xxxx-Xxxx does not terminate this Agreement pursuant to the provisions of this
Section, then Contributor shall, prior to the Closing Date, cause all temporary
repairs to be made to the Property as shall be required to prevent further
deterioration and damage to the Property and to protect public health and
safety; provided, however, that any such repairs shall first be approved by
MCRLP or Xxxx-Xxxx. Contributor shall have the right to be reimbursed from the
proceeds of any insurance with respect to the Property for the cost of such
temporary repairs.
18. CONDEMNATION.
In the event of a material taking (as defined in this Section 18),
MCRLP and Xxxx-Xxxx shall have the right, at its sole option, to either (a)
terminate this Agreement by giving Contributor written notice to such effect at
any time after its receipt of written notification of any such occurrence, or
(b) accept title to the remainder of the Property without reduction of any
consideration given hereunder. Should MCRLP or Xxxx-Xxxx so terminate this
Agreement in accordance with this Section, neither party shall have any further
liability or obligations to the other. In the event MCRLP or Xxxx-Xxxx shall not
elect to cancel this Agreement, Contributor shall, subject to the rights of the
holder of any existing mortgage, assign all proceeds of such taking to MCRLP or
Xxxx-Xxxx, and the same shall be MCRLP's or Xxxx-Xxxx'x sole property, and MCRLP
or Xxxx-Xxxx shall have the sole right to settle any claim in connection with
the Property. The term "material taking" shall be defined to mean the
institution of any proceedings, judicial, administrative or otherwise which
involve (a) the taking of a portion of Real Property such that ingress and
egress to such Real Property is impaired, (b) the taking of a portion of the
parking spaces of a Real Property such that after such taking the Real Property
will not be in compliance with local zoning regulations regarding adequate
parking, or (c) the taking of any part of a Building.
19. TRANSFER RESTRICTIONS.
19.1 Contributor hereby agrees that the Contributor Units may not be
sold, assigned, transferred, pledged, encumbered or in any manner disposed of
(collectively, "Transferred") or redeemed for shares of Common Stock until the
first anniversary of the Closing Date. Thereafter, the Contributor Units and/or
the shares of Common Stock underlying the
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Contributor Units (the "Underlying Shares") may only be transferred (i)
privately in accordance with the terms of the OP Agreement and this Section 19,
or (ii) publicly (subject to the restrictions of the Act and the rules and
regulations promulgated thereunder) in trading blocks of 150,000 Common Stock
shares in any single day. Notwithstanding anything herein to the contrary, the
provisions of this Section 19 shall not apply to (i) pledges or encumbrances of
all or a portion of the Contributor Units to an institutional lender, or (ii)
Transfers of all or any portion of the Contributor Units to permitted
transferees as set forth in the OP Agreement (the "Permitted Transferees"). Any
holder of Contributor Units pursuant to (i) or (ii) of the preceding sentence
shall be subject to the terms and conditions of the OP Agreement.
19.2 If any of the Contributor Unit Holders, or any of their
Permitted Transferees (each a "Seller") receives a bona fide written offer to
purchase part or all of its Contributor Units or Underlying Shares in a
privately negotiated transaction which it desires to accept, such Seller shall
not sell, transfer, or otherwise dispose of (the "Proposed Disposition") such
Units or Underlying Shares (the "Disposition Securities") to a third party (the
"Purchaser"), unless prior to such Proposed Disposition, such Seller shall have
promptly reduced the terms and conditions, if any, of the Proposed Disposition
to a reasonably detailed writing and shall have delivered written notice (the
"Disposition Notice") of such Proposed Disposition to MCRLP. The Disposition
Notice shall identify the Purchaser, the Disposition Securities, the
consideration and method of payment contemplated by the Proposed Disposition and
all other terms and conditions, if any, of the Proposed Disposition.
19.3 Xxxx-Xxxx shall not sell the Property within four (4) years
from the date of the Closing (the "Restricted Period") without the prior written
consent of Contributor, other than (1) in connection with a transaction which
does not result in recognition of gain by Pacifica; (2) a sale of any of the
Property set forth in Schedule 19.3 hereto; (3) as determined by the Board of
Directors of Xxxx-Xxxx (the "Board") as necessary to satisfy any material
monetary default on any mortgage secured by the Property; (4) as determined by
the Board as necessary to satisfy any material, unsecured debt, judgment or
liability of Xxxx-Xxxx when the same becomes due (at maturity or otherwise); (5)
in connection with the sale of all or substantially all of the properties owned
by Xxxx-Xxxx under such terms and conditions which the Board, in its sole
judgment, determines to be in the best interests of Xxxx-Xxxx and its public
stockholders; and/or (6) sales of the Property which do not result in material
and adverse tax consequences for Pacifica. Xxxx-Xxxx may dispose of any or all
of the Property in its sole discretion, and without the consent of Contributor,
upon the expiration of the Restricted Period. Notwithstanding any of the
foregoing language to the contrary, Xxxx-Xxxx shall not distribute the Property
for a period of seven (7) years if the distribution of such Property would
result in the recognition of income by Contributor pursuant to Sections
704(c)(1)(B) or 737 of the Code, except as otherwise permitted in clauses (1)
through (7) above.
20. INTENTIONALLY DELETED.
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21. TAX MATTERS.
21.1 (a) Contributor will timely pay or provide for the payment of
all Taxes which are attributable to all Pre-Closing Tax Periods, but which are
not due and payable until after the Closing Date in connection with the
ownership and/or operation of the Property (by them or any predecessor entities)
or their businesses for which either MCRLP (or any of its direct or indirect
partners) could be held directly or indirectly liable or a claim could be made
against the Property. To the extent allowed by law, Contributor will timely file
all Tax Returns which are required to be filed in connection with the ownership
and/or operation of the Property (by them or any predecessor entities) or their
businesses for all Pre-Closing Tax Periods but which are not required to be
filed until after the Closing Date and the non-timely filing (or non-filing) of
which could result in direct or indirect liability to MCRLP (or any of its
direct or indirect partners) or a claim against the Property. Each such Tax
Return will be complete and accurate. Contributor will provide Xxxx-Xxxx with a
copy of all such Tax Returns promptly after such Tax Returns are filed. All
Taxes imposed in connection with the ownership and/or operation of the Property
during any taxable periods which begin on or before the Closing Date and end
after the Closing Date ("Straddle Periods" or "Straddle Period") shall be
allocated between Contributor and MCRLP in accordance with their respective
periods of ownership of the Property. Contributor will timely pay all Taxes with
respect to their businesses for any Straddle Period (and any other taxable
period) for which either MCRLP (or any of its direct to indirect partners) could
be held directly or indirectly liable or a claim could be made against the
Property.
(b) Contributor shall provide Xxxx-Xxxx with a copy of its
Federal income tax returns which reflect (in whole or in part) any of the
transactions contemplated hereunder and which reflect (in whole or in part) any
of the gain or loss recognized in respect of such transactions.
21.2 Contributor shall pay any and all Taxes including without
limitation, Taxes imposed with respect to the operation of its business and the
ownership or operation of the Property for all taxable periods (or portions
thereof) ending on or prior to the Closing imposed upon MCRLP based, in whole or
in part, upon the failure to comply with the sales laws.
21.3 Contributor is hereby authorized to continue the proceeding or
proceedings now pending for the reduction of the assessed valuation of the
Property as set forth on Schedule 21.3 and to litigate or settle the same in
Contributor's discretion. MCRLP is hereby authorized by Contributor, in MCRLP's
sole discretion, to file any applicable proceeding for the 1997 fiscal year for
the reduction of the assessed valuation of the Property. The net refund of
taxes, if any, for any tax year for which Contributor or MCRLP shall be entitled
to share in the refund shall be divided between Contributor and MCRLP in
accordance with the apportionment of taxes pursuant to the provisions hereof.
All expenses in connection therewith, including counsel fees, shall be borne by
Contributor and MCRLP in proportion to their ownership period of the asset in
question.
21.4 For purposes of this Agreement:
56
(a) "Taxes" or "Tax" means all federal, state, county, local,
foreign and other taxes of any kind whatsoever (including, without limitation,
income, profits, premium, estimated, excise, sales, use, occupancy, gross
receipts, franchise, ad valorem, severance, capital levy, production, transfer,
license, stamp, environmental, withholding, employment, unemployment
compensation, payroll related and property taxes, import duties and other
governmental charges or assessments), whether or not measured in whole or in
part by net income, and including deficiencies, interest, additions to tax or
interest, and penalties with respect thereto, and including expenses associated
with contesting any proposed adjustment related to any of the foregoing.
(b) "Tax Returns" or "Tax Return" means all original and
amended Federal, state, local and foreign tax returns, declarations, statements,
reports, schedules, forms, information returns and other filings relating to
Taxes.
(c) "Audits" or "Audit" means any audit, assessment of Taxes,
any other examination or claim by any Governmental Authority, judicial,
administrative or other proceeding or litigation (including any appeal of any
such judicial, administrative or other proceeding or litigation) relating to
Taxes and/or Tax Returns.
21.5 The provisions of this Section shall survive the Closing Date.
22. PUBLICATION.
22.1 MCRLP shall have the exclusive right to make such public
announcements or filings with respect to the exchange as MCRLP may deem
reasonably prudent and, upon advice of counsel, as may be necessary or required
by law.
23. REMEDIES.
23.1 If the conditions set forth in Section 12.2 with respect to the
Closing have been satisfied (unless the failure or inability to be so satisfied
is due to Xxxx-Xxxx or MCRLP) and if MCRLP is not ready, willing and able to
perform its obligations hereunder on the Closing Date, or in the event of a
material default of MCRLP or Xxxx-Xxxx or MCRLP's or Xxxx-Xxxx'x material
failure to comply with any material representation, warranty, covenant or
agreement set forth herein with respect to the Closing, then Contributor shall
have the right as its sole and exclusive remedy to either (i) terminate this
Agreement upon written notice to MCRLP, in which event neither party shall
thereafter have any further obligations under this Agreement, except those which
expressly survive the termination hereof; or (ii) maintain an action for either
(A) specific performance, or (B) monetary damages.
23.2 If the conditions set forth in Section 12.1 have been satisfied
(unless the failure or inability to be so satisfied is due to Contributor), and
if Contributor is not ready, willing
57
and able to perform its obligations hereunder on the Closing Date, or in the
event of any material default on the part of Contributor, or Contributor's
failure to comply with any material representation, warranty, covenant or
agreement set forth herein, MCRLP shall be entitled to either (i) terminate this
Agreement upon notice to Contributor following which neither party shall
thereafter have any further obligations under this Agreement, except those which
expressly survive the termination hereof; or (ii) commence an action against
Contributor seeking either (A) monetary damages, or (B) specific performance of
Contributor's obligations under this Agreement.
23.3 The acceptance of the Deed by MCRLP shall be deemed a full
performance and discharge of every agreement and obligation of Contributor to be
performed under this Agreement, except those, if any, which are specifically
stated in this Agreement to survive the Closing.
24. INTENTIONALLY DELETED.
25. NOTICE.
All notices, demands, requests, or other writings in this Agreement
provided to be given or made or sent, or which may be given or made or sent, by
either party hereto to the other, shall be in writing and shall be delivered by
depositing the same with any nationally recognized overnight delivery service,
or by telecopy or fax machine, in either event with all transmittal fees
prepaid, properly addressed, and sent to the following addresses:
If to Xxxx-Xxxx: c/o Xxxx-Xxxx Realty Corporation
or MCRLP 00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
with a copy to: Pryor, Cashman, Xxxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
If to Contributor: Pacifica Holding Company, LLC
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxx Xxxxxxx
58
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
with a copy to: Brownstein, Hyatt, et al.
000 00xx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxx, Esq.
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
or to such other address as either party may from time to time designate by
written notice to the other or to the Escrow Agent. Notices given by (i)
overnight delivery service as aforesaid shall be deemed received and effective
on the first business day following such dispatch, and (ii) telecopy or fax
machine shall be deemed given at the time and on the date of machine transmittal
provided the same is sent prior to 4:00 p.m. Eastern Time on a business day (if
sent later, then notice shall be deemed given on the next business day) and if
the sending party receives a written send confirmation on its machine and
forwards a copy thereof by regular mail accompanied by such notice or
communication. Notices may be given by counsel for the parties described above,
and such Notices shall be deemed given by said party, for all purposes
hereunder.
26. DEPRECIATION METHOD.
Xxxx-Xxxx, as the general partner of MCRLP, covenants and agrees
that MCRLP and its affiliates will use the "traditional method with curative
allocations" (as defined in Treasury Regulations Section 1.704-3(c)) of
allocating income, gain, loss and deduction to account for the variation between
the fair market value and adjusted basis of the Property for federal income tax
purposes with respect to (i) the contribution of the Property, and (ii) any
revaluation of the Property in accordance with the provisions of Treasury
Regulations Sections 1.704-1(b)(2)(iv)(f), 1.704- 1(b)(2)(iv)(g) and
1.704-3(a)(6).
27. MISCELLANEOUS.
27.1 Intentionally Deleted.
27.2 This Agreement constitutes the entire agreement between the
parties and incorporates and supersedes all prior negotiations and discussions
between the parties. This Agreement shall be binding upon and inure solely to
the benefit of each party hereto and their successors and assigns, and nothing
in the Agreement express or implied, is intended to confer upon any other person
any rights or remedies of any nature whatsoever under or by reason of this
Agreement.
59
27.3 This Agreement cannot be amended, waived or terminated orally,
but only by an agreement in writing signed by the party to be charged.
27.4 This Agreement shall be interpreted and governed by the laws of
the State of Colorado, without regard to conflicts of laws principles, and shall
be binding upon the parties hereto and their respective successors and assigns.
27.5 The caption headings in this Agreement are for convenience only
and are not intended to be part of this Agreement and shall not be construed to
modify, explain or alter any of the terms, covenants or conditions herein
contained. The, feminine or masculine gender, when used herein, shall each
include the other gender and the use of the singular shall include the plural.
27.6 If any term, covenant or condition of this Agreement is held to
be invalid, illegal or unenforceable in any respect, this Agreement shall be
construed without such provision.
27.7 Each party shall, from time to time, execute, acknowledge and
deliver to the other party such further instruments, and perform such additional
acts, as the other party may reasonably request in order to effectuate the
intent of this Agreement. Nothing contained in this Agreement shall be deemed to
create any rights or obligations of partnership, joint venture or similar
association between Contributor and MCRLP or Xxxx-Xxxx. This Agreement shall be
given a fair and reasonable construction in accordance with the intentions of
the parties hereto, and without regard to or aid of canons requiring
construction against Contributor, MCRLP, Xxxx-Xxxx or the party whose counsel
drafted this Agreement.
27.8 This Agreement shall not be effective or binding until such
time as it has been executed and delivered by all parties hereto. This Agreement
may be executed by the parties hereto in counterparts, all of which together
shall constitute a single Agreement.
27.9 All references herein to any Section, Exhibit, or Schedule
shall be to the Sections of this Agreement and to the Exhibits and Schedules
annexed hereto unless the context clearly dictates otherwise. All of the
Exhibits and Schedules annexed hereto are, by this reference, incorporated
herein.
27.10 In the event that Contributor and MCRLP or Xxxx-Xxxx enter
into litigation or alternative dispute resolution in connection with this
Agreement or the transaction contemplated herein, the non-prevailing party in
such litigation or alternative dispute resolution shall be responsible for the
payment of all expenses and reasonable attorneys' fees incurred by the
prevailing party.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE.]
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