Exhibit 10.13
ASH OWNERSHIP INTERESTS ASSIGNMENT AGREEMENT
THIS ASH OWNERSHIP INTERESTS ASSIGNMENT AGREEMENT (this "AGREEMENT") is
made and entered into as of July __, 2004, by and among Ash Foothills Investors,
LLC, an Arizona limited liability company ("AFI"), Xxxxx Xxx ("XXXXX") and Xxxx
Xxx ("XXXX") and Xxxxxxx Equities of Arizona, L.L.C., an Arizona limited
liability company ("FEA"; and together with its designees, "ASSIGNEE").
RECITALS
WHEREAS, AFI is the owner of a membership interest ("MEMBERSHIP
INTEREST") in Foothills Mall Investors LLC, an Arizona limited liability company
("FMI"), pursuant to the Operating Agreement for FMI, entered into on or about
April 9, 2002, (as amended, the "OPERATING AGREEMENT");
WHEREAS, Xxxxx is the owner of 245 shares of stock in Xxxxxxx Mall
Partner Inc., an Arizona corporation ("MALL PARTNER"), and 245 shares of stock
in Xxxxxxx Pads Partner, Inc., an Arizona corporation ("PADS PARTNER"), such
shares are hereinafter described as the "XXXXX STOCK";
WHEREAS, Xxxx is the owner of 245 shares of stock in Mall Partner and
245 shares of stock in Pads Partner, such shares are hereinafter described as
the "XXXX XXXXX";
WHEREAS, FMI is the sole limited partner and Pads Partner is the sole
general partner in Xxxxxxx Foothills Pads LP ("PADS LP");
WHEREAS, Pads LP is the sole limited partner and Mall Partner is the
sole general partner in Xxxxxxx Foothills Mall LP ("MALL LP");
WHEREAS, Mall LP is the sole member of Foothills Mall LLC, a Delaware
limited liability company doing business in the State of Arizona as Foothills
Mall Tucson LLC ("MALL OWNER");
WHEREAS, FEA and AFI are the only members of FMI and, upon consummation
of the transaction contemplated by this Agreement, FMI will be wholly-owned by
Assignee;
WHEREAS, Assignee intends to acquire ("XXXXXXX STOCK ACQUISITION") (a)
the shares of stock owned by Xxxxxxxx Xxxxxxx in Mall Partner and/or Pads
Partner; (b) Mall Partner and/or Pads Partner; and/or (c) all or substantially
all of the assets of Mall Partner and/or Pads Partner, in each case by separate
agreements so that, upon consummation of such acquisition and the transaction
contemplated by this Agreement, Mall Partner and Pads Partner (or all or
substantially all of their assets) will be wholly-owned by Assignee;
WHEREAS, Mall Owner owns the parcel of real property known as Foothills
Mall located in Pima County, Arizona as more fully described on EXHIBIT A
attached to this Agreement and incorporated herein by this reference (the "REAL
PROPERTY");
WHEREAS, Xxxxxxx Equities Operating Partnership LP, a Delaware limited
partnership (the "OPERATING PARTNERSHIP"), a member of FEA, Xxxxxxx Mall
Properties, Inc., a Maryland corporation (the "REIT") and/or their respective
affiliates (collectively, the "FORMATION PARTIES"), are in the process of
conducting a reorganization in which, among other things, the one or more
Formation Parties will, directly and/or through wholly-owned subsidiaries,
acquire interests in certain [JOINT VENTURES FROM THIRD PARTIES AND JOINT
VENTURE PARTNERS OF ITS AFFILIATES - IS THIS STILL THE CASE?] (such
reorganization and all transactions related thereto, including the acquisition
of the Xxxxxxx Stock Acquisition and the contribution by the Formation Parties
to Assignee of certain of the proceeds of the IPO, the "FORMATION
TRANSACTIONS");
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WHEREAS, contemporaneously with or on or about the completion of the
Formation Transactions, the REIT will conduct an underwritten initial public
offering of its shares of common stock pursuant to an effective registration
statement filed with the Securities and Exchange Commission (such underwritten
initial public offering, the "IPO"); and
WHEREAS, subject to the completion of the Formation Transactions and
the IPO, FEA desires to acquire the Membership Interest, the Xxxxx Stock and the
Xxxx Xxxxx, and AFI, Xxxx and Xxxxx desire to assign, convey and transfer to FEA
the Membership Interest, the Xxxxx Stock and the Xxxx Xxxxx (collectively, the
"ASH OWNERSHIP INTERESTS"), free and clear of all liens, security interests,
prior assignments or conveyances, conditions, special assessments, and
encumbrances whatsoever and all other defects or imperfections in title
(collectively, "ENCUMBRANCES"), in accordance with the terms and subject to the
conditions, and for the consideration, specified in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties to this
Agreement agree as follows:
1. CONTRIBUTION OF ASH OWNERSHIP INTERESTS; EFFECTIVE DATE. Xxx, Xxxxx
and Xxxx (individually a "TRANSFEROR" and collectively the "TRANSFERORS") agree
to transfer, convey and assign to FEA, and FEA agrees to accept the
contribution, transfer, conveyance and assignment of, the Ash Ownership
Interests, pursuant to the terms and conditions set forth in this Agreement. On
the Closing Date (as hereinafter defined), the Transferors shall contribute,
transfer, convey and assign to FEA the Ash Ownership Interests, free and clear
of all Encumbrances. The Transferors acknowledge that, following the Closing
(hereinafter defined), the Transferors will have no further right, title or
interest of any nature (including as a member, shareholder, officer, director,
manager or otherwise) in or to any of Mall Owner, Mall LP, Mall Partner, Pads
LP, Pads Partner, FMI, or FEA (collectively, the "OWNERSHIP ENTITIES"), any
assets of any of the Ownership Entities (including without limitation any
reserve funds held by any lender for any of the Ownership Entities), or the Real
Property.
2. CONSIDERATION. The aggregate consideration for which the Transferors
agree to transfer, convey and assign the Ash Ownership Interests to Assignee is
the total sum of Four Million Five Hundred Thousand Dollars ($4,500,000.00) (the
"AGGREGATE CONSIDERATION VALUE"). The Aggregate Consideration Value is allocable
among the Transferors and each Transferor's portion of the Ash Ownership
Interests being transferred by such Transferor as set forth on EXHIBIT B to this
Agreement. On the Closing Date, the Aggregate Consideration Value shall be paid
by Assignee by delivering an amount, in cash, by wire transfer of immediately
available funds to an account to be designated in writing by the Transferor's
Agent (as hereinafter defined) at least five (5) days prior to the Closing Date
[JLB TO CONFIRM TIMING] on behalf of each Transferor, equal to each Transferor's
pro rata share of the Aggregate Consideration Value set forth next to each such
Transferor's name on EXHIBIT B to this Agreement to the Transferors.
Notwithstanding the foregoing, FEA and AFI acknowledge that Additional Capital
Contributions and/or Member Loans (as such terms are defined in the Operating
Agreement) may be required under Section 2.2 of the Operating Agreement prior to
the Closing; in such event,
A. if AFI makes an Additional Capital Contribution or Member
Loan, then
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(i) the Aggregate Consideration Value payable under
this Agreement shall be increased by the principal amount (without any preferred
return or interest) of the Additional Capital Contribution(s) or Member Loan(s)
made by AFI to FMI; and
(ii) the amount payable to AFI as set forth on
EXHIBIT B shall be increased by such amount and the respective percentages
allocating the Aggregate Consideration Value shall be appropriately adjusted.
B. if Assignee makes an Additional Capital Contribution on
behalf of AFI pursuant to Section 2.2(b)(i) of the Operating Agreement or if
Assignee makes a Member Loan on behalf of AFI pursuant to Section 2.2(b)(ii) of
the Operating Agreement, then
(i) the Aggregate Consideration Value payable under
this Agreement shall be decreased by the sum of (x) the principal amount of such
Additional Capital Contribution(s) and Member Loan(s) and (y) simple interest on
the principal amount of such Additional Capital Contribution(s) and Member
Loan(s) at a rate of fifteen percent (15%) per annum from the date contributed
or advanced until the Closing; and
(ii) the amount payable to AFI as set forth on
EXHIBIT B shall be decreased by such amount and the respective percentages
allocating the Aggregate Consideration Value shall be appropriately adjusted.
C. all Additional Capital Contributions and Member Loans made
by AFI shall be part of the Ash Ownership Interests.
[CONSIDER: DECREASING AGGREGATE CONSIDERATION VALUE TO THE EXTENT OF ANY
DISTRIBUTIONS MADE WITH RESPECT TO CAPITAL EVENTS AND TO THE EXTENT THEY EXIST,
SUSPENDING ANY EXIT RIGHTS (BUY/SELL, CALLS/PUTS, ETC.)]
3. TERM OF AGREEMENT. If the Closing does not occur by January 31,
2005, (the "TERMINATION DATE"), this Agreement shall be deemed terminated and
shall be of no further force and effect and neither FEA nor any Transferor shall
have any further obligations pursuant to this Agreement except as specifically
set forth in this Agreement. Notwithstanding the foregoing, if the Formation
Parties are then actively pursuing the IPO, FEA may, at its sole option, extend
the Termination Date to April 30, 2005.
4. ADDITIONAL COVENANTS AND AGREEMENTS FROM THE TRANSFERORS.
A. Each of the Transferors hereby designates and appoints AFI
as the transferors' agent (the "TRANSFERORS' AGENT") and designates AFI as his
agent and attorney-in-fact to take all actions and execute all documentation on
his or her behalf and in his or her name that it deems necessary or advisable to
effect the transactions contemplated by this Agreement.
B. Each of the Transferors hereby acknowledges and agrees that
none of Assignee, the REIT, the Operating Partnership nor any of their
respective affiliates is responsible for the distribution or allocation of the
Aggregate Consideration Value to the Transferors and that none of them shall
have any obligation whatsoever to the Transferors once the Aggregate
Consideration Value is delivered by the Operating Partnership to the
Transferors' Agent.
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C. Each of the Transferors hereby acknowledges and agrees that
Assignee may rely on all written directions and instructions of the Transferors'
Agent as if such directions and instructions were given directly by the
individual Transferors.
5. ACCEPTANCE CERTIFICATE. From the date hereof until Closing, Assignee
shall have the right to determine in its good faith whether the Real Property is
suitable and satisfactory Assignee's intended use of the Real Property. Assignee
shall notify the Transferors in writing, on or before the Closing, that Assignee
intends to proceed with the acquisition of the Ash Ownership Interests (such
writing referred to herein as the "ACCEPTANCE CERTIFICATE").
6. SURVEY AND TITLE MATTERS.
A. Title Insurance. Promptly after the date hereof, Assignee
may order, at its option, at its sole cost and expense, current title insurance
commitment for a policy (ALTA) of owner's title insurance and a copy of all
exceptions referred to therein (the "TITLE COMMITMENT") form a title insurance
company selected by Assignee ("TITLE COMPANY"). The Title Commitment shall
irrevocably obligate the Title Company to issue an ALTA Title Insurance Policy
in the full amount of the Aggregate Consideration Value or such other amount as
determined by Assignee (the "TITLE POLICY"), which Title Policy shall insure
Mall Owner's fee simple title to the Real Property. Assignee will also order, at
its sole cost and expense, customary UCC, judgment and bankruptcy searches on
the Transferors, the Mall Owner, the Mall Partner, the Mall LP, the Pads
Partner, the Pads LP, FMI and the Real Property (collectively, the "SEARCHES").
B. Survey. Assignee may order, at its option, at its sole cost
and expense, an ALTA survey of the Real Property ("SURVEY"). The legal
description of the Real Property set forth in the Survey shall be substituted
for the description of the Real Property set forth herein and such substituted
legal description shall be used in other documents, if applicable, to be
delivered by the Transferors to Assignee or the Title Company at Closing.
C. Title and Survey Objection. Prior to Closing, Assignee
shall provide the Transferors with notice of any matters set forth in the Title
Commitment, Survey or the Searches which are unacceptable to Assignee. Any
matters set forth in the Title Commitment, Survey or the Searches to which
Assignee does not object, or which have been waived or cured shall be referred
to collectively herein as the "PERMITTED EXCEPTIONS." The Transferors may elect
to have such unacceptable exceptions removed from the Title Commitment or to
have such unacceptable exceptions cured to the reasonable satisfaction of
Assignee and the Title Company or surveyor, if applicable. In the event the
Transferors, at their discretion, fail or determine not to cure any such
unacceptable exceptions before Closing, Assignee shall either (i) waive
Assignee's objection to said unacceptable exceptions and consider said
unacceptable exceptions Permitted Exceptions or (ii) terminate this Agreement.
Notwithstanding anything to the contrary contained in this Section or any other
provision in this Agreement, the Transferors shall be obligated to cure, satisfy
or obtain affirmative title insurance (which affirmative title insurance shall
be reasonably acceptable to Assignee) with regard to any and all Monetary
Objections (as hereinafter defined) and any other encumbrance, exception or
matter first appearing of record after the date hereof as a result of or arising
by, through or under the voluntary action or voluntary inaction of the
Transferors, and if not so addressed by the Transferors, Assignee may use the
proceeds of the Aggregate Consideration Value at Closing for such purpose. For
purposes of this Agreement, the term "MONETARY OBJECTION" shall mean (a) any
mortgage, deed to secure debt, deed of trust, assignment of leases and rents,
negative pledge, financing statement or similar security instrument encumbering
all or any part of the Real Property and/or the Ash Ownership Interests, (any
mechanic's, materialmen's, broker's or similar lien), (b) the lien for ad
valorem real or personal property taxes, assessments and governmental charges
affecting all or any portion of the Real Property which are delinquent, and (c)
any final unappealable judgment of record against the Transferors in the county
or other applicable jurisdiction in which the Real Property is located.
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7. CLOSING DATE AND CLOSING PROCEDURES AND REQUIREMENTS.
A. Closing Date. The "CLOSING DATE" or "CLOSING" of this
Agreement and the completion of the acquisition of the Ash Ownership Interests
by FEA shall be on or before sixty (60) days after the closing of the IPO or
such earlier date as FEA may specify by notice to the Transferors not less than
three business days in advance of the Closing. Closing shall take place at the
offices of the Title Company or at such other place as the parties hereto may
agree upon and shall be coordinated and conducted with the Title Company.
However, Closing shall not occur unless each and every condition to (i)
Assignee's obligations, more specifically set out and otherwise enumerated in
Section 12 of this Agreement and (ii) the Transferors' obligations, more
specifically set out and otherwise enumerated in Section 13 of this Agreement,
has been satisfied or waived.
B. Conveyance of Title and Delivery of Closing Documents. On
the Closing Date, (A) the Transferors shall have delivered (i) all documents and
items required by this Agreement or reasonably requested by a party to
facilitate the consummation of the transaction contemplated hereunder, and (ii)
a non-foreign status affidavit pursuant to Section 1445 of the Code, in a form
reasonably acceptable to FEA, duly executed by the Transferors, and (B) the
parties hereto shall have submitted to the Title Company any other documents
reasonably required by the Title Company for Closing. The Transferors must
provide such undertakings as the Title Company may require to issue the Title
Policy to Assignee.
C. Payment of Aggregate Consideration Value at Closing and
Interest Assignment. On the Closing Date, Assignee shall transfer the Aggregate
Consideration Value to the Transferors' Agent pursuant to Section 2 of this
Agreement. Simultaneously with the delivery of the Aggregate Consideration
Value, each Transferor will transfer, convey, assign and deliver to Assignee
good and valid title in and to the Transferor's portion of the Ash Ownership
Interests held by such Transferor, in each case, free and clear of all
Encumbrances, by executing and delivering to Assignee (i) in the case of AFI, a
member interest transfer agreement substantially in the form of EXHIBIT C
attached to this Agreement and (ii) in the case of Xxxxx and Xxxx, a stock
interest transfer agreement substantially in the form of EXHIBIT D attached to
this Agreement, together with the originals of all stock certificates issued in
respect of the Xxxxx Stock and Xxxx Xxxxx, in each case endorsed in favor of
Assignee in a manner reasonably acceptable to Assignee.
D. Closing Costs. The Transferors shall, at Closing, pay any
sales or use, transfer or similar tax payable by virtue of the transfer and
contribution or deemed transfer or contribution of personal property, any real
estate transfer and transaction taxes and levies relating to the transfer and
contribution of the Ash Ownership Interests including, without limitation, the
revenue or documentary stamps, transfer tax or similar tax, title insurance
premiums for standard coverage (including any fees for title examination), and
one-half of any escrow fees. FEA agrees to pay for the cost of all inspections,
including environmental site assessments and the Survey, the cost of any
extended title coverage or special endorsements, and one-half of any escrow
fees. Each party shall pay its own attorneys' fees and costs. All other costs
incurred at Closing shall be borne by the parties in accordance with the custom
in the county where the Real Property is located, as determined by the Title
Company, unless otherwise specified in this Agreement.
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E. Risk of Loss. If all or any portion of the Real Property is
taken, or becomes subject to a pending taking, by eminent domain, or is conveyed
in lieu thereof, or if Mall Owner or any Transferor receives notice of any
rezoning of the Real Property, Assignee shall have the right and option to
terminate this Agreement by providing the Transferors with written notice at any
time after its receipt of written notification from the Transferors of any such
occurrence. If Assignee elects not to terminate this Agreement, then, as of the
Closing, the Transferors shall deliver to Assignee the amount of any award or
other proceeds on account of such taking or conveyance which have been actually
paid to the Transferors prior to the Closing Date as a result of such taking or
conveyance (less all costs and expenses, including, without limitation,
attorneys' fees and costs, incurred by the Transferors as of the Closing Date in
obtaining payment of such award or proceeds or in repairing or restoring the
Real Property) and, to the extent such award or proceeds have not been delivered
to the Transferors, the Transferors shall assign to Assignee at Closing (without
recourse to the Transferors) the rights of the Transferors to, and Assignee
shall be entitled to receive and retain, all awards for the taking of the Real
Property or any portion thereof or conveyance in lieu thereof (less the costs
and expenses described above in this Section to the extent not previously paid
to the Transferors out of the award or proceeds for the applicable taking or
conveyance in lieu thereof).
8. REPRESENTATIONS AND WARRANTIES OF THE TRANSFERORS. Each Transferor
hereby makes the following representations and warranties (in each case on his
or her own behalf and not on the part of or with respect to any other
Transferor), each of which is material and being relied upon by Assignee, each
and every one of which is true, correct, and complete as of the date of this
Agreement (unless they expressly provide for a future date), and will be true,
correct, and complete as of the Closing Date:
A. Organization. AFI is a limited liability company, duly
organized, validly existing and in good standing under the laws of the State of
Arizona.
B. Authority. Each Transferor has the right, power and
authority to enter into and deliver this Agreement and to perform all of its
obligations under this Agreement and to consummate the transactions contemplated
by this Agreement. The execution and delivery of this Agreement and the
performance by each such Transferor of its respective obligations hereunder
require no further action or approval of any other individuals or entities in
order to constitute this Agreement as a binding and enforceable obligation of
each such Transferor in accordance with its terms subject, as to enforcement, to
the bankruptcy, reorganization, insolvency and other similar laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity. Without limitation of the foregoing, AFI has obtained any
consents of members or other approvals, if any, required under the terms of the
Operating Agreement.
C. Ownership.
(i) Each Transferor owns its portion of the Ash
Ownership Interests as stated in the Recitals, beneficially and of record, free
and clear of any and all Encumbrances. Except for this Agreement, such
Transferor has not granted any options, warrants, or rights to subscribe to,
securities, member interests, rights or obligations convertible into or
exchangeable for or given any right to subscribe for or participate in the
profits of all or any portion of its portion of the Ash Ownership Interests. AFI
has not previously assigned, transferred, conveyed, encumbered, or liened any
portion of the Membership Interest. At Closing, upon consummation of the
transactions contemplated hereby, Assignee will acquire the entire legal and
beneficial interest in all of such Transferor's portion of the Ash Ownership
Interests, free and clear of any and all Encumbrances;
(ii) the Transferors are the only owners of the Ash
Ownership Interests;
(iii) no Transferor has granted any other person or
entity an option to purchase or a right of first refusal upon the Ash Ownership
Interests, or any portion thereof or any direct or indirect interest therein nor
are there any agreements or understandings between any Transferor and any other
person or entity with respect to the disposition of the Ash Ownership Interests
or any portion thereof;
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(iv) no Transferor has received any notice, and has
no knowledge, that Mall Owner or the Real Property or any portion or portions
thereof is or will be subject to or affected by any special assessments, whether
or not presently a lien thereon;
(v) no Transferor has any knowledge of any latent
defects or adverse facts that exist with respect to the physical condition of
the Real Property which have not been specifically disclosed in writing to FEA,
including, without limitation, adverse soil conditions;
(vi) no Transferor has assigned, transferred,
conveyed, mortgaged, deeded in trust, or encumbered any interest in the Real
Property, excluding leases with tenants in the ordinary course of business, or
in the Ash Ownership Interests; and
(vii) no Transferor has any knowledge or notice that
any present default or breach exists under any mortgage or other encumbrance
encumbering the Real Property or any covenants, conditions, restrictions,
rights-of-way or easements which may affect the Real Property or any portion or
portions thereof. No Transferor has received any notices from governmental or
regulatory, authorities pertaining to violation of law or governmental
regulations with respect to the Real Property.
D. Noncontravention. Neither the entry into nor the
performance of, or compliance with, this Agreement by such Transferor has
resulted, or will result, in any violation of, or default under, or result in
the acceleration of, any obligation under any limited liability company
agreement, partnership agreement, regulations, mortgage indenture, lien
agreement, note, contract, permit, judgment, decree, order, restrictive
covenant, statute, rule, or regulation applicable to (i) such Transferor or the
Ash Ownership Interests or (ii) to the Transferors' knowledge, any of the
Ownership Entities or the Real Property.
E. Litigation. To each Transferor's knowledge, there is no
action, suit, or proceeding, pending or threatened, against or affecting any of
the Ownership Entities, such Transferor, the Ash Ownership Interests or the Real
Property in any court or before any arbitrator or before any federal, state,
municipal, or other governmental department, commission, board, bureau, agency
or instrumentality which (i) in any manner raises any question affecting the
validity or enforceability of this Agreement; (ii) could materially and
adversely affect the business, financial position, or results of operations of
Mall Owner or such Transferor; (iii) could materially and adversely affect the
ability of such Transferor to perform its obligations hereunder, or under any
document to be delivered pursuant hereto; (iv) could create a lien on the Ash
Ownership Interests or the Real Property, any part thereof, or any interest
therein; or (v) could materially and adversely affect any of the Ownership
Entities or the Ash Ownership Interests or the Real Property, any part thereof,
or any interest therein.
F. No Consents. Except as may otherwise be set forth in this
Agreement, each consent, approval, authorization, order, license, certificate,
permit, registration, designation, or filing by or with any governmental agency
or body necessary for the execution, delivery, and performance of this Agreement
or the transactions contemplated hereby by such Transferor has been obtained or
will be obtained on or before the Closing Date.
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G. Reliance. In engaging in this transaction, none of the
Transferors are relying upon any representations made to it by Assignee, or any
of its partners, officers, employees, affiliates or agents that are not
contained in this Agreement.
H. Tax Matters. Each Transferor represents and warrants that
it has obtained from its own counsel advice regarding the tax consequences of
(i) the transfer of such Transferor's portion of the Ash Ownership Interests to
FEA and the receipt of proceeds therefor and (ii) any other transaction
contemplated by this Agreement. Each Transferor further represents and warrants
that it has not relied on Assignee or Assignee's representatives or counsel for
such tax advice.
I. Bankruptcy with Respect to Ownership Entities or
Transferors. No Act of Bankruptcy has occurred with respect to any of the
Ownership Entities or any Transferor. As used herein, "ACT OF BANKRUPTCY" shall
mean if any of the Ownership Entities or any Transferor shall (i) apply for or
consent to the appointment of, or the taking of possession by, a receiver,
custodian, trustee or liquidator of itself or of all or a substantial part of
its property, (ii) admit in writing its inability to pay its debts as they
become due, (iii) make a general assignment for the benefit of its creditors,
(iv) file a voluntary petition or commence a voluntary case or proceeding under
the Federal Bankruptcy Code (as now or hereafter in effect), (v) be adjudicated
bankrupt or insolvent, (vi) file a petition seeking to take advantage of any
other law relating to bankruptcy, insolvency, reorganization, receivership,
dissolution, winding-up or composition or adjustment of debts, (vii) fail to
controvert in a timely and appropriate manner, or acquiesce in writing to, any
petition filed against it in an involuntary case or proceeding under the Federal
Bankruptcy Code (as now or hereafter in effect), or (viii) take any entity
action for the purpose of effecting any of the foregoing.
J. Brokerage Commission. No Transferor has engaged the
services of, any real estate agent, broker, finder or any other person or entity
for any brokerage or finder's fee, commission or other amount with respect to
the transactions described herein on account of any action by any Transferor.
Each Transferor hereby agrees to indemnify and hold Assignee and its employees,
directors, partners, affiliates and agents harmless against any claims,
liabilities, damages or expenses arising out of a breach of the foregoing. This
indemnification shall survive Closing or any termination of this Agreement.
K. Further Representations and Warranties. Each of the
following statements is true, correct and complete as of the date of this
Agreement (unless they expressly provide for a future date), and will be true,
correct and complete as of the Closing Date:
(i) Ownership Entities' Operations. The Ownership
Entities were formed for the purpose of owning and holding the Real Property.
Since the date of their formation, the Ownership Entities have not owned or held
any material assets other than the Real Property, except those assets that are
included in the Real Property and those immaterial assets that were used or
disposed of in the ordinary course of business of the Ownership Entities in
operating and maintaining the Real Property. Since the date of formation, none
of the Ownership Entities have operated or conducted any other trade or business
other than the ownership and management of the Real Property.
(ii) Liabilities; Indebtedness. None of the
Transferors has incurred any indebtedness related to the Real Property or the
Ash Ownership Interests, or any portion thereof. None of the Transferors have
entered into any agreements, contracts or other obligations of any nature on
behalf of any of the Ownership Entities (all authority for such actions being
vested in other owners).
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(iii) Environmental Conditions. Transferor has not
received and to Transferor's knowledge none of the Ownership Entities has
received any notice of the presence or release of any substance that is
regulated under any Environmental Laws (as defined below) as a hazardous or
extremely hazardous solid waste, chemical, pesticide, pollutant, contaminant or
toxic, radioactive or otherwise hazardous substance, including petroleum, its
derivatives or by-products and other hydrocarbons including but not limited to
friable or damaged asbestos, asbestos-containing materials, polychlorinated
biphenyls, solvents and waste oil, any "hazardous substance" as defined under
CERCLA (as defined below) and any "hazardous waste" as defined under RCRA (as
defined below) or comparable state or local law (collectively and individually,
"HAZARDOUS SUBSTANCES") that would cause the Real Property to be in violation of
any applicable Environmental Laws and that remains uncured, nor has such
Transferor received written notice that the Real Property is not in compliance
with applicable Environmental Laws.
For the purposes of this Section 8, "ENVIRONMENTAL LAWS" means any and
all federal, state and local statutes, laws, regulations and rules, guidelines,
court orders, judicial or administrative decrees, arbitration awards and the
common law, which pertain to the protection of the environment, soil, water,
air, flora and fauna, or health and safety matters, as such have been amended,
modified or supplemented from time to time (including all amendments thereto and
reauthorizations thereof). "ENVIRONMENTAL LAWS" include, without limitation,
those relating to: (i) the manufacture, processing, use, distribution,
treatment, storage, disposal, generation or transportation and disposal of
Hazardous Substances; (ii) air, soil, surface, subsurface, groundwater or noise
pollution; (iii) releases; (iv) protection of endangered species, wetlands or
natural resources; (v) the operation and closure of underground storage tanks;
(vi) health and safety of employees and other persons; and (vii) notification
and reporting requirements relating to the foregoing. Without limiting the
above, "ENVIRONMENTAL LAWS" also includes the following: (i) the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. xx.xx. 9601 et
seq.), as amended ("CERCLA"); (ii) the Solid Waste Disposal Act, as amended by
the Resource Conservation and Recovery Act (42 U.S.C. xx.xx. 6901 et seq.), as
amended ("RCRA"); (iii) the Emergency Planning and Community Right to Know Act
of 1986 (42 U.S.C. xx.xx. 11001 et seq.), as amended; (iv) the Clean Air Act (42
U.S.C. xx.xx. 7401 et seq.), as amended; (v) the Clean Water Act (33 U.S.C.
xx.xx. 1251 et seq.), as amended; (vi) the Occupational Safety and Health Act
(29 U.S.C. xx.xx. 651 et seq.), as amended; (vii) any state, county, municipal
or local statutes, laws or ordinances similar or analogous to (including
counterparts of) any of the statutes listed above; and (viii) any rules,
regulations, guidelines, directives, orders or the like adopted pursuant to or
implementing any of the above.
(iv) No Continuing Obligations. None of the
Transferors and to Transferor's knowledge none of the Ownership Entities is a
party to any contract with any governmental or regulatory authority or any
person pursuant to which any of the Ownership Entities or any of the Transferors
have any indemnity or other continuing obligation with respect to (i) the
remediation or investigation of any condition resulting from the treatment,
storage, or release of Hazardous Substances; or (ii) any actual or potential
non-compliance with Environmental Laws.
(v) Compliance With Laws. No Transferor has received
and to the Transferors' knowledge none of the Ownership Entities has received
any written notice or proceedings relating to the revocation or modification of
any certificates, authorities or permits issued by any state or federal agencies
or bodies necessary to conduct the business to be conducted by any of the
Ownership Entities which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling, or finding, would materially and adversely affect
the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Real Property any of the Ownership Entities. No
Transferor has received and to the Transferors' knowledge none of the Ownership
Entities has received any written or other notice of any violation of any
applicable zoning, building or safety code, rule, regulation or ordinance, or of
any employment, environmental, wetlands or other regulatory law, order,
regulation or other requirement, including without limitation the Americans With
Disabilities Act or any restrictive covenants or other easements, encumbrances
or agreements, relating to the Real Property, which remains uncured and would
materially and adversely affect the condition, financial or otherwise, or the
earnings, business affairs or business prospects of any of the Ownership
Entities or the Real Property.
9
(vi) Condemnation and Moratoria. To Transferors'
knowledge, there are (i) no pending or threatened condemnation or eminent domain
proceedings, or negotiations for purchase in lieu of condemnation, which affect
or would affect any portion of the Real Property; (ii) no pending or threatened
moratoria on utility or public water or sewer hook-ups or the issuance of
permits, licenses or other inspections or approvals necessary in connection with
the construction or reconstruction of improvements which affect or would affect
any portion of the Real Property; and (iii) no pending or threatened proceeding
to change adversely the existing zoning classification as to any portion of the
Real Property. To Transferors' knowledge, no portion of the Real Property is a
designated historic property or located within a designated historic area or
district, and there are no graveyards or burial grounds located within any of
the Real Property.
L. Representations True and Correct. In the event that changes
occur as to any material information, documents or exhibits referred to in this
Agreement, of which any Transferor has knowledge, such Transferor will
immediately disclose the same to Assignee when first available to such
Transferor; and, in the event of any such material change, Assignee may, at its
election, terminate this Agreement.
9. REPRESENTATIONS AND WARRANTIES OF FEA. FEA hereby makes the
following representations and warranties, each of which is material and being
relied upon by each Transferor, are true, correct, and complete as of the date
of this Agreement (unless they expressly provide for a future date) and will be
true, correct, and complete as of the Closing Date:
A. Organization and Authority. FEA is a limited liability
company duly organized, validly existing, and in good standing under the laws of
the State of Arizona, and has full limited liability company right, power, and
authority to execute and deliver this Agreement and to perform all of its
obligations under this Agreement and to consummate the transactions contemplated
by this Agreement. The execution and delivery of this Agreement and the
performance by FEA of its obligations hereunder have been duly authorized by all
requisite action of FEA and require no further action or approval of FEA's
members, directors, officers, managers or of any other individuals or entities
in order to constitute this Agreement as a binding and enforceable obligation of
FEA in accordance with its terms subject, as to enforcement, to the bankruptcy,
reorganization, insolvency and other similar laws of general applicability
relating to or affecting creditors' rights and to general principles of equity.
B. Noncontravention. Neither the entry into nor the
performance of, or compliance with, this Agreement by FEA has resulted, or will
result, in any violation of, or default under, or result in the acceleration of,
any obligation under its operating agreement, or any material mortgage,
indenture, lien agreement, note, contract, permit, judgment, decree, order,
restrictive covenant, statute, rule, or regulation applicable to FEA.
C. Litigation. To FEA's knowledge, there is no action, suit,
or proceeding, pending or threatened, against or affecting FEA in any court or
before any arbitrator or before any federal, state, municipal, or other
governmental department, commission, board, bureau, agency or instrumentality
which in any manner raises any question affecting the validity or enforceability
of this Agreement or could materially and adversely affect the ability of FEA to
perform its obligations under this Agreement, or under any document to be
delivered pursuant to this Agreement.
D. Consents. Except as may otherwise be set forth in this
Agreement, each consent, approval, authorization, order, license, certificate,
permit, registration, designation, or filing by or with any governmental agency
or body necessary for the execution, delivery, and performance of this Agreement
or the transactions contemplated hereby by FEA has been obtained or will be
obtained on or before the Closing Date.
10
E. Brokerage Commission. FEA has not engaged the services of
any real estate agent, broker, finder or any other person or entity for any
brokerage or finder's fee, commission or other amount with respect to the
transactions described herein on account of any action by FEA. FEA hereby agrees
to indemnify and hold each Transferor harmless against any claims, liabilities,
damages or expenses arising out of a breach of the foregoing. This
indemnification shall survive Closing or any termination of this Agreement.
F. Representations True and Correct. In the event that changes
occur as to any material information, documents or exhibits referred to in this
Agreement, of which FEA has knowledge, FEA will immediately disclose the same to
the Transferors when first available to FEA; and, in the event of any such
material change, the Transferors may, at their election, terminate this
Agreement if such change materially adversely affects Transferors.
10. COVENANTS.
A. Tax Covenants. Each Transferor (or, if such Transferor is
not a natural person, any beneficial owners of such Transferor) shall provide
Assignee with such cooperation and information with respect to taxes relating to
the Ownership Entities or any of the Ash Ownership Interests or the Real
Property as reasonably requested by Assignee and shall cooperate with Assignee
with respect to its filing of tax returns. Assignee shall promptly notify the
applicable Transferor in writing upon receipt by Assignee or any of its
affiliates of notice of (i) any pending or threatened tax audits or assessments
relating to any Transferor, the Ownership Entities or any part of the Ash
Ownership Interests or the Real Property and (ii) any pending or threatened
federal, state, local or foreign tax audits or assessments of Assignee or any of
its affiliates, in each case which may affect the liabilities for taxes of such
Transferor with respect to any tax period ending on or before the Closing Date.
Each Transferor (or, if such Transferor is not a natural person, any beneficial
owners of such Transferor) shall promptly notify Assignee in writing upon
receipt by such Transferor or its beneficial owners, as applicable, of notice of
any pending or threatened federal, state, local or foreign tax audits or
assessments relating to any of the Ownership Entities or any part of the Ash
Ownership Interests or the Real Property. Assignee and each Transferor or its
beneficial owners, as applicable, may participate at its own expense in the
prosecution of any claim or audit with respect to taxes attributable to any
taxable period ending on or before the Closing Date, provided, that such
Transferor or its beneficial owners, as applicable, shall have the right to
control the conduct of any such audit or proceeding or portion thereof for which
such Transferor (or its beneficial owners) has acknowledged liability (except as
a partner of Assignee) for the payment of any additional tax liability, and
Assignee shall have the right to control any other audits and proceedings.
Notwithstanding the foregoing, neither Assignee nor any Transferor (or, if such
Transferor is not a natural person, any beneficial owners of such Transferor)
may settle or otherwise resolve any such claim, suit to proceeding which could
have an adverse tax effect on the other party or its owners without the consent
of the other party, such consent not to be unreasonably withheld. Each
Transferor (or, if such Transferor is not a natural person, any beneficial
owners of such Transferor) and Assignee shall retain all tax returns, schedules
and work papers, and all material records and other documents relating thereto,
until the expiration of the statute of limitations (and, to the extent notified
by any party, any extensions thereof) of the taxable years to which such tax
returns and other documents relate and until the final determination of any tax
in respect of such years.
11
B. Conduct of Business. Each Transferor (or, if such
Transferor is not a natural person, any beneficial owner of such Transferor)
agrees and covenants that, up to the time of Closing, such Transferor shall not
take any action that is not consistent with the operation of the business
relating to the Real Property in the usual, regular and ordinary manner
consistent with prior practice. No distribution may be made to any Transferor
pursuant to the Operating Agreement, unless such distribution is made in
accordance with past practice and is disclosed to Assignee.
11. WAIVERS, SURRENDER OR ASSIGNMENT OF RIGHTS UNDER ASH OWNERSHIP
INTERESTS. As of the Closing Date, each Transferor surrenders, waives or to the
extent assignable, assigns to Assignee all rights and benefits otherwise
afforded to such Transferor under the Ash Ownership Interests (including the
Operating Agreement) or the Real Property including, without limitation, any
rights of appraisal, rights of first offer or first refusal, buy/sell
agreements, and any right to consent to or approve of the sale or contribution
of its interest (including its portion of the Ash Ownership Interests) in any of
the Ownership Entities or the Real Property to Assignee.
12. CONDITIONS PRECEDENT TO ASSIGNEE'S OBLIGATIONS. Assignee's
obligation to perform any obligations provided for in this Agreement is
conditioned upon the occurrence of the following conditions on or before the
Closing Date:
A. Assignee shall have delivered the Acceptance Certificate to
the Transferors.
B. The obligations of each Transferor contained in this
Agreement to be performed by them shall have been duly performed by them on or
before the Closing Date and the Transferors shall not have breached any of their
representations, warranties, covenants or agreements contained herein.
C. Concurrently with the Closing, each Transferor shall have
executed and delivered to Assignee the documents required to be delivered
pursuant to this Agreement.
D. Each Transferor shall have obtained and delivered to FEA
any consents or approvals of any Governmental Entity (as defined below) or third
parties (including, without limitation, any lenders and lessors) required to
consummate the transactions contemplated by this Agreement. As used herein, the
term "GOVERNMENTAL ENTITY" means any governmental agency or quasi-governmental
agency, bureau, board, commission, court, department, official, political
subdivision, tribunal or other instrumentality of any government, whether
federal, state or local, domestic or foreign.
E. No order, statute, rule, regulation, executive order,
injunction, stay, decree or restraining order shall have been enacted, entered,
promulgated or enforced by any court of competent jurisdiction or Governmental
Entity that prohibits the consummation of the transactions contemplated hereby,
and no litigation or governmental proceeding seeking such an order shall be
pending or threatened.
F. There shall not have occurred between the date hereof and
the Closing Date any material adverse change in any of the assets, business,
financial condition, results of operations or prospects of any of the Real
Property or the Ownership Entities.
G. The Title Company shall be irrevocably committed to issuing
the Title Policy upon Closing insuring ownership of the Real Property in the
name of Mall Owner or its nominee or assignee in the amount equal to the
Aggregate Consideration Value, or such other amount as determined by FEA in
accordance with Section 6 hereof, subject only to Permitted Exceptions.
H. The Real Property shall not have been materially affected
by any legislative or regulatory change, or any fire, flood, accident or other
adverse event that would prohibit Assignee from using any part of the Real
Property for Assignee's intended purpose.
12
I. There shall be no actions, suits or proceedings of any kind
or nature whatsoever, legal or equitable, affecting the Ash Ownership Interests,
any of the Ownership Entities, or any part of the Real Property or any portion
or portions thereof in any material way, or relating to or arising out of the
ownership of the Ownership Entities or the Real Property, in any court or before
or by a federal, state, county, municipal department, commission, board, bureau,
or agency or other governmental instrumentality.
J. The Formation Transactions and the IPO shall have been
completed.
Any or all of the foregoing conditions may be waived by FEA in
its sole and absolute discretion.
13. CONDITIONS TO THE TRANSFEROR'S OBLIGATIONS. Each Transferor's
obligation to perform any obligations provided for in this Agreement is
conditioned upon the occurrence of the following conditions on or before the
Closing Date:
A. The representations, warranties and covenants of FEA
contained in this Agreement shall be true and correct as of the Closing Date.
B. The obligations of FEA contained in this Agreement to be
performed by it shall have been duly performed by it on or before the Closing
Date and FEA shall not have breached any of its covenants or agreements
contained herein.
C. FEA shall have delivered the Acceptance Certificate to the
Transferors.
D. No order, statute, rule, regulation, executive order,
injunction, stay, decree or restraining order shall have been enacted, entered,
promulgated or enforced by any court of competent jurisdiction or Governmental
Entity that prohibits the consummation of the transactions contemplated hereby,
and no litigations or governmental proceeding seeking such an order shall be
pending or threatened.
Any or all of the foregoing conditions may be waived by the
Transferors in their sole and absolute discretion.
14. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; REMEDY FOR BREACH.
A. Subject to Section 15 hereof, all representations and
warranties of the Transferors and FEA in this Agreement shall survive the
Closing for a period of one year after the Closing Date.
B. Notwithstanding anything to the contrary in this Agreement,
except as otherwise provided in Section 16 hereof with respect to Assignee's
right to obtain an injunction, neither the Transferors nor FEA shall be liable
under this Agreement for monetary damages (or otherwise) for breach of any of
its representations, warranties, covenants and obligations or in any agreement
or exhibit delivered by any of them pursuant thereto, other than pursuant to
Section 15 of this Agreement.
15. INDEMNIFICATION.
A. Transferor's Indemnity. Each Transferor hereby jointly and
severally agrees to indemnify and hold Assignee and its direct and indirect
members, shareholders, partners, directors, officers, employees, trustees,
affiliates and agents harmless of and from all liabilities, losses, damages,
costs, and expenses (including reasonable attorneys' fees) which they may suffer
or incur by reason of any breach of such Transferor's representations or
warranties contained in this Agreement and any exhibit or attachment to this
Agreement.
13
B. FEA's Indemnity. FEA hereby agrees to indemnify and hold
the Transferors and their respective direct and indirect members, shareholders,
partners, directors, officers, employees, trustees, affiliates and agents
harmless of and from all liabilities, losses, damages, costs, and expenses
(including reasonable attorneys' fees) which they may suffer or incur by reason
of any breach of FEA's representations or warranties contained in this Agreement
and any exhibit or attachment to this Agreement.
C. Limitation Period. Notwithstanding the foregoing, any claim
for indemnification under this Section 15 must be asserted in writing, stating
the nature of such claim and the basis for indemnification therefore within one
year after the Closing. If so asserted in writing within one year after the
Closing, such claims for indemnification shall survive until resolved by mutual
agreement between the Transferors and FEA or by judicial determination.
16. INJUNCTIONS. Each Transferor agrees that irreparable damage would
occur to Assignee in the event that any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that Assignee shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement by such
Transferor and to enforce specifically the terms and provisions hereof in any
federal or state court (as to which the parties agree to submit to jurisdiction
for the purposes of such action), this being in addition to any other remedy to
which Assignee is entitled under this Agreement or otherwise at law or in
equity.
17. INTENTIONALLY OMITTED.
18. SUCCESSORS AND ASSIGNS. The rights and obligations created by this
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their heirs, executors, receivers, trustees, successors and permitted assigns.
19. GOVERNING LAW. This Agreement and all transactions contemplated
hereby shall be governed by, construed and enforced in accordance with the laws
of the State of Arizona.
20. THIRD PARTY BENEFICIARY. Except as specifically set forth in this
Agreement, no provision of this Agreement is intended, nor shall it be
interpreted, to provide or create any third party beneficiary rights or other
rights of any kind in any customer, affiliate, stockholder, partner, member,
director, officer, or employee of any party to this Agreement or any other
person or entity.
21. SEVERABILITY. If any provision of this Agreement, or the
application thereof, is for any reason held to any extent to be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances will be interpreted so as reasonably to effect
the intent of the parties hereto. The parties further agree to replace such void
or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the extent possible, the economic, business, and
other purposes of the void or unenforceable provision and to execute any
amendment, consent, or agreement deemed necessary or desirable by Assignee to
effect such replacement.
22. NOTICES. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or mailed (first class postage prepaid)
to the parties at the following addresses or facsimile numbers:
14
If to the Transferors: c/o Xx. Xxxxx Xxx
0000 X. Xxxxxx Xxxx
Xxxxxx, XX 00000
Facsimile: ________________
with a copy to:
Xxx X. Xxxxxxxxxx, Esq.
0000 Xxxx Xxxxxxxx
Xxxxxx, Xxxxxxx 00000-0000
Facsimile: 520-881-6775
If to Assignee: Xxxxxxx Equities of Arizona, L.L.C.
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Facsimile: 000-000-0000
with a copy to:
Xxxxxxx Xxxxxx, Esq.
Xxx Xxxxxx, Xxxxxx & Xxxxxxx, LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
All such notices, requests and other communications will (i) if
delivered personally to the address as provided in this Section, be deemed given
upon delivery or refusal, (ii) if delivered by facsimile transmission to the
facsimile number as provided in this Section, be deemed given upon receipt, and
(iii) if delivered by mail in the manner described above to the address as
provided in this Section, be deemed given upon receipt or refusal (in each case
regardless of whether such notice, request or other communication is received by
any other Person to whom a copy of such notice is to be delivered pursuant to
this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto in accordance with
this Section.
23. WEEKENDS, HOLIDAYS, ETC. If the time period by which any right,
option or election provided for under this Agreement must be exercised, or by
which any act required hereunder must be performed, or by which Closing must be
held, expires on a day which is a Saturday, Sunday, or official federal or a
state holiday for the States of Arizona or New York, then such time period shall
be automatically extended through the close of business on the next business
day.
24. FURTHER ASSURANCES. From time to time, at either party's request,
whether on or after Closing, and without further consideration, the other party
shall execute and deliver any further instruments of conveyance and take such
other actions as the requesting party may reasonably require to complete more
effectively the transfer of the Ash Ownership Interests to Assignee.
25. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
26. ENTIRE AGREEMENT AND AMENDMENTS. This Agreement, together with all
exhibits attached hereto or referred to herein, contain all representations and
the entire understanding between the parties hereto with respect to the subject
matter hereof. Any prior correspondence, memoranda or agreements are replaced in
total by this Agreement and exhibits hereto. This Agreement may only be modified
or amended upon the written consent of each party hereto.
15
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first written above.
TRANSFERORS:
Ash Foothills Investors, LLC,
an Arizona limited liability company
________________________________
Xxxxx Xxx
By: _____________________________
Name: ___________________________
________________________________
Title: __________________________ Xxxx Xxx
FEA:
Xxxxxxx Equities of Arizona, L.L.C.,
an Arizona limited liability company
_________________________________
Xxxxxxxx Xxxxxxx, Manager
16
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
17
EXHIBIT B
ALLOCATION OF AGGREGATE CONSIDERATION
VALUE AMONG TRANSFERORS
Percentage of Aggregate Amount of Aggregate
Transferor: Consideration Value Consideration Value
Ash Foothills Investors, LLC ___% $__________
Xxxxx Xxx ___% $__________
Xxxx Xxx ___% $__________
Total 100% $4,500,000.00
18
EXHIBIT C
MEMBERSHIP INTEREST TRANSFER FORM
19
EXHIBIT D
STOCK TRANSFER FORM
20
