EXHIBIT 10.1
SECOND AMENDMENT TO CONTRIBUTION AGREEMENT
This Second Amendment to Contribution Agreement ("Amendment") is made and
entered into as of the 6th day of January, 2006, by and between PLACE
PROPERTIES, L.P. and PLACE MEZZ BORROWER, LLC (collectively, "Transferor") and
EDUCATION REALTY OPERATING PARTNERSHIP, LP ("Transferee").
WITNESSETH:
WHEREAS, Transferee and Transferor entered into that certain Contribution
Agreement dated September 14, 2005 ("the Agreement") pursuant to which the
parties set forth their agreement with respect to the contribution of the
membership interests (as defined in the Agreement), which Agreement was amended
by First Amendment to Contribution Agreement dated December 28, 2005;
WHEREAS, the parties hereto desire to further amend and modify the
Agreement in certain particulars as more particularly set forth below.
NOW, THEREFORE, for and in consideration of $10.00 in hand paid by the
parties hereto and other good and valuable consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, Transferee and Transferor do
hereby agree as follows:
1. All capitalized terms not otherwise defined in this Amendment shall have
the meaning given to such terms in the Agreement.
2. The Agreement is hereby modified as follows:
(a) Paragraph 3.1 of the Agreement is hereby amended by substituting
Exhibit B and Addendum to Exhibit B, attached hereto, in place of
Exhibit B previously attached to the Agreement.
(b) Paragraph 3.2.1 is hereby amended to read: "Transferee shall
receive a credit at Closing in an amount equal to the unpaid
principal balance of the Assumed Loan, the Mezzanine Loan and the
Mini-Perm Loan as of the date of Closing";
(c) Paragraph 3.3.2 of the Agreement is hereby amended by inserting
in the first line thereof the phrase "Mezzanine Loan and the"
immediately before the reference to "Assumed Loan";
(d) Paragraph 5.2 of the Agreement is hereby amended by deleting the
second and third sentences thereof and inserting the following in
lieu thereof: "Except as otherwise set forth herein, all items to
be prorated pursuant to this Section 5.2 shall be prorated as of
midnight on December 31, 2005. Insofar as the Master Tenant will
be responsible for all taxes, insurance, and operating expenses,
and entitled to receive all rents under the Leases, from and
after January 1, 2006 pursuant to the terms of the Master Lease,
all prorations of such items shall be between the Transferors and
the Master Tenant unless otherwise expressly provided herein,
with the Master Tenant to be treated as the owner of the
Properties, for purposes of computing prorations of income and
operating expenses, on and after January 1, 2006.";
(e) Paragraph 5.4 of the Agreement is hereby amended by deleting the
first sentence thereof and inserting the following in lieu
thereof: "Interest and other periodic charges payable under the
Assumed Loan, the Mezzanine Loan, the Mini-Perm Loan and the
Defeased Loans shall be prorated as of midnight, December 31,
2005.";
(f) Paragraph 7.4 of the Agreement is hereby amended to add the
following text to the end thereof: "Notwithstanding any of the
foregoing to the contrary the parties agree that (i) it shall be
Transferee's obligation to pay in full at Closing the Mezzanine
Loan and the Mini-Perm Loan, subject to the obligations of
Transferor under Paragraph 5.5 of the Agreement and Section 4 of
this Amendment; and (ii) it shall be Transferor's obligation to
defease the Defeased Loans at Closing provided that (x)
Transferee shall pay to the Defeased Lenders an amount equal to
the cost of the investment securities required to defease the
Defeased Loans in excess of the outstanding principal balance of
the Defeased Loans on the Closing Date and Transferee shall pay
all other costs and expenses of consummating the defeasance of
the Defeased Loans other than Transferor's legal fees and
expenses, and (y) Transferors shall pay to the Defeased Lenders
an amount equal to the outstanding principal balance of the
Defeased Loan for contribution to the purchase of the investment
securities required to effectuate such defeasance."
(g) Paragraph 8.1.14(v) of the Agreement is hereby amended by
deleting the text thereof and inserting the following in lieu
thereof: "Each of the Assumed Loan and the Mezzanine Loan is a
"qualified liability" within the meaning of Section 1.707-5(a)(6)
of the Treasury Regulations.";
(h) Paragraph 8.1.14 of the Agreement is hereby amended by adding the
following text as subparagraph (vi) thereof: "All of the repairs
described in the Property Condition Assessment prepared by ATC
Associates Inc. for the Assumption Lender for River Place and
Clemson Place have been completed and all costs thereof have been
paid in full.";
(i) Paragraph 10.17 of the Agreement is hereby amended to provide
that the effective date of the Master Lease shall be January 1,
2006; and
(j) Paragraph 11.1 of the Agreement is hereby amended by adding the
following text as subparagraph 11.1.3 thereof:
"11.1.3 PREPAYMENT OF MEZZANINE LOAN AND MINI-PERM LOAN. On the
Closing Date, Transferee will consummate the prepayment of the
Mezzanine Loan and the Mini-Perm Loan in accordance with the
terms of this Agreement.".
(k) Paragraph 11.2 of the Agreement is hereby amended by adding the
following text as subparagraph 11.2.10 thereof:
"11.2.10 DEFEASANCE OF DEFEASED LOANS. On the Closing Date,
Transferors have consummated the defeasance of the Defeased Loans
in accordance with the terms of this Agreement."
3. Section 11.2.5 of the Contribution Agreement, provides that as a
condition of Transferee's obligation to close the subject transactions,
Transferee shall have received from Transferee's independent
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auditors prior to Closing the audited financial statements with respect to the
Properties acquired that shall (i) comply as to form in all material respects
with applicable accounting requirements and the published rules and regulations
of the SEC with respect thereto (including, without limitation, Rule 3-14 of
Regulation S-X) (collectively, the "SEC RULES"), (ii) have been prepared in
accordance with generally accepted accounting principles in the United States
("GAAP") applied on a consistent basis during the periods and at the dates
involved (except as may be indicated in the notes thereto which exceptions shall
be customary and shall in no way limit the requirement that the financial
statements comply with the rules and regulations of the SEC), and (iii) fairly
present the consolidated financial condition of the Properties and the Property
Owners at the dates thereof and the consolidated results of operations and cash
flows of the Properties, and the Property Owners for the periods presented (such
audited financial statements described in this sentence are referred to as the
"Audited Financial Statements"). The parties acknowledge that Transferee has not
received from its independent auditors the Audited Financial Statements and that
Transferee, Transferee's independent auditors and/or the REIT need to obtain
additional information and cooperation from Transferors in order to complete the
Audited Financial Statements. Transferee hereby agrees to close the transactions
contemplated by the Contribution Agreement notwithstanding the failure to
satisfy the condition of Section 11.2.5 with respect to the receipt of the
Audited Financial Statements prior to Closing in reliance upon Transferors'
agreements set forth below.
In order to induce Transferee to close the transactions contemplated
by the Contribution Agreement, Transferors acknowledge and agree as follows:
(i) Transferors understand that the REIT is subject to the reporting
requirements of the Securities Exchange Act of 1934, as amended, which will
require, among other things, that the REIT file with the SEC the Audited
Financial Statements;
(ii) Transferors understand that if the REIT is not able to file in a
timely manner, or at all, the Audited Financial Statements the REIT will suffer
adverse effects, significant damages and potential liability;
(iii) Transferors understand that the REIT has an obligation to file a
registration statement to register shares of common stock held by certain of its
stockholders pursuant to a Registration Rights Agreement dated as of September
22, 2005 (the "Registration Rights Agreement"), by and among the REIT and the
investors named on the signature pages to the Registration Rights Agreement,
including an obligation that the REIT file a Shelf Registration Statement (as
defined in the Registration Rights Agreement) no later than February 1, 2006 and
that such Shelf Registration Statement be declared effective no later than March
29, 2006 (the "Registration Deadline");
(iv) Transferors understand that if the Shelf Registration Statement
is not declared effective by the Registration Deadline, the REIT will be
required to pay significant liquidated damages to the holders of Registrable
Securities (as defined in the Registration Rights Agreement) and that the REIT's
ability to have the Shelf Registration Statement declared effective by the
Registration Deadline is dependent upon its ability to file the Shelf
Registration Statement as soon as possible but in any event by January 31, 2006;
(v) Transferors understand that, in order to meet the Registration
Deadline, the REIT intends to file the Shelf Registration Statement on or about
January 25, 2006 or as soon as practicable thereafter but in any event no later
than January 31, 2006, and that the REIT intends to file the Audited Financial
Statements prior to, and as a condition of, the filing of the Shelf Registration
Statement;
(vi) Each Transferor agrees to cooperate fully and at its own expense
with Transferee, the REIT and Transferee's independent auditors in connection
with the preparation of the Audited Financial
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Statements, including without limitation providing such information as is
requested in a timely manner by Transferee, the REIT or Transferee's independent
auditors in connection therewith and which is required under the SEC Rules or
GAAP;
(vii) Transferors shall provide all of such requested information
required under the SEC Rules or GAAP promptly upon request and otherwise
cooperate in a timely manner such that the REIT will be able to file the Audited
Financial Statements on or before January 25, 2006;
(viii) Each Transferor, jointly with the other Transferor, warrants
that it has sufficient financial information on the Properties and the Property
Owners which are necessary under the SEC Rules or GAAP to complete the Audited
Financial Statements;
(ix) Without limiting the generality of the foregoing, Transferors and
their executive officers shall execute such representation letters as may
reasonably be required by such independent auditor in order to enable such firm
to deliver its audit report on such financial statements and to consent to the
filing of such report and financial statements with the SEC;
(x) Transferors, jointly and severally, shall and do hereby agree to
indemnify, defend and hold the Transferee and the REIT harmless from and against
any and all claims, demands, suits, obligations, payments, damages (including
without limitation damages under the Registration Rights Agreement), losses,
penalties, liabilities, costs and expenses (including but not limited to
attorneys' fees) arising out of the REIT's failure to file the Audited Financial
Statements with the SEC on or before January 25, 2006, only to the extent such
failure is caused by the action or inaction of either Transferor or its or their
agents or by the failure of either or both Transferors to timely provide
requested information required under the SEC Rules or GAAP to complete the
Audited Financial Statements or by either Transferor's or Transferor's agents'
delays in providing such information.
(xi) At Closing, Transferors shall deposit in escrow with Xxxxxx,
Xxxxxxx & Xxxxxx pursuant to an escrow agreement in the form attached hereto as
Exhibit "I" the sum of $250,000.00 to secure the performance of Transferor's
obligations under Section 3 of this Amendment.
The terms and provisions of this Section 3 shall survive the Closing.
Transferors acknowledge and agree that the REIT is an intended third party
beneficiary of this Section 3.
4. Transferor hereby agrees to indemnify, defend and hold harmless
Transferee from any and all loss, liability, damages, costs or expenses arising
from Transferee's acquisition of the Membership Interests subject to the
Mezzanine Loan and the Mini-Perm Loan and the prepayment thereof including
without limitation any additional fees, prepayment premiums, interest, default
interest or other charges imposed by the Mezzanine Lender or the Mini-Perm
Lender as a result thereof (except for the one-half point fee on the Mezzanine
Loan to be paid by Transferee pursuant to Paragraph 5.5 of the Agreement. This
indemnity shall survive the Closing.
5. This Amendment may be executed in any number of counterparts, each of
which shall be deemed to be an original as against any party whose signatures
appear thereon and all of such counterparts shall together constitute one and
the same instrument. This amendment shall be binding when one or more
counterparts thereof, individually or taken together, shall bear the signatures
of all parties reflected hereon as the signatories. This Amendment may be
executed and delivered by fax; any original signatures that are initially
delivered by fax shall be physically delivered with reasonable promptness
thereafter.
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6. Except as expressly set forth herein, the Agreement, as amended by the
First Amendment, remains unmodified and unchanged and the parties hereto ratify
and confirm the Agreement as amended hereby.
TRANSFERORS:
PLACE PROPERTIES, L.P., a Tennessee
limited partnership
By: Place Collegiate Properties Co., a
Tennessee corporation, its general
partner
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxx, President
PLACE MEZZ BORROWER, LLC, a Delaware
limited liability company
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
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Title: Manager
---------------------------------
TRANSFEREE:
EDUCATION REALTY OPERATING PARTNERSHIP,
LP, a Delaware limited partnership
By: Education Realty OP GP, Inc., its
General Partner
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
----------------------------------
Title: President
---------------------------------
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